0000028823False00000288232023-01-052023-01-05
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): December 29, 2022
Diebold Nixdorf, Incorporated
(Exact name of registrant as specified in its charter)
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| Ohio | | 1-4879 | | 34-0183970 |
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(State or other jurisdiction of incorporation) | | (Commission File Number) | | (I.R.S. Employer Identification No.) |
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| 50 Executive Parkway, P.O. Box 2520 | | | | |
| Hudson, | Ohio | | | | 44236 |
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| (Address of principal executive offices) | | | | (Zip Code) |
Registrant's telephone number, including area code: (330) 490-4000
Not Applicable
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:
☐ 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))
Securities registered pursuant to Section 12(b) of the Act:
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| Title of each class | | Trading Symbol | | Name of each exchange on which registered |
| Common shares, $1.25 par value per share | | DBD | | New York Stock Exchange |
Indicate by check mark whether the registrant is an emerging growth company 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. ☐
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| Item 1.01 Entry into a Material Definitive Agreement | |
As previously disclosed, on December 29, 2022 (the “Settlement Date”), Diebold Nixdorf, Incorporated (the “Company”) completed a series of transactions with certain key financial stakeholders to refinance certain debt with near-term maturities and provide the Company with $400 million in new capital. The transactions and related material definitive agreements entered into by the Company are described below.
Private Exchange Offers and Consent Solicitations
8.50% Senior Notes due 2024
On the Settlement Date, the Company completed the private exchange offer and consent solicitation with respect to the outstanding 8.50% Senior Notes due 2024 issued by the Company (144A CUSIP: 253651AA1; REG S CUSIP: U25316AA5; Registered CUSIP: 253651AC7) (the “2024 Senior Notes”), which included (i) a private offer to certain eligible holders to exchange any and all 2024 Senior Notes for units (the “Units”) consisting of (a) new 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 issued by the Company (the “New Notes”) and (b) a number of warrants (the “New Warrants” and, together with the Units and the New Notes, the “New Securities”) to purchase common shares, par value $1.25 per share, of the Company (“Common Shares”) and (ii) a related consent solicitation to adopt certain proposed amendments to the indenture governing the 2024 Senior Notes (the “2024 Senior Notes Indenture”) to eliminate certain of the covenants, restrictive provisions and events of default intended to protect holders, among other things, from such indenture (collectively, the “2024 Exchange Offer and Consent Solicitation”).
The 2024 Exchange Offer and Consent Solicitation was completed on the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement, dated as of November 28, 2022 (as amended, the “2024 Offering Memorandum”), and the related eligibility letter.
Pursuant to the 2024 Exchange Offer and Consent Solicitation, the Company accepted $327,888,000 in aggregate principal amount of the 2024 Senior Notes (representing 81.97% of the aggregate principal amount outstanding of the 2024 Senior Notes) tendered for exchange and issued $333,616,814 in aggregate principal amount of Units consisting of $333,616,814 in aggregate principal amount of New Notes and 15,813,847 New Warrants to purchase up to 15,813,847 Common Shares, which included, in the form of additional aggregate principal amount of Units and New Notes, accrued and unpaid interest to, but excluding, the Settlement Date, on the 2024 Senior Notes that were accepted for exchange, with amounts less than the minimum denomination of $2,000 aggregate principal amount and integral multiples of $1.00 in excess thereof paid in cash.
In connection with the 2024 Exchange Offer and Consent Solicitation, the Company entered into a unit agreement, a warrant agreement, an indenture governing the New Notes and a supplemental indenture, each as described below.
9.375% Senior Secured Notes due 2025 and 9.000% Senior Secured Notes due 2025
On the Settlement Date, the Company also completed the private exchange offers and consent solicitations with respect to the outstanding 9.375% Senior Secured Notes due 2025 issued by the Company (144A CUSIP: 253657AA8; 144A ISIN: US253657AA82; REG S CUSIP: U25317AA3; ISIN: USU25317AA30) (the “2025 USD Senior Notes”) and the outstanding 9.000% Senior Secured Notes due 2025 issued by Diebold Nixdorf Dutch Holding B.V. (the “Dutch Issuer”), a direct and wholly owned subsidiary of the Company (144A ISIN: XS2206383080; 144A Common Code 220638308; REG S ISIN: XS2206382868; REG S Common Code 220638286) (the “2025 EUR Senior Notes”, and together with the 2025 USD Senior Notes, the “2025 Senior Notes”), which included (i) private offers to certain eligible holders to exchange (a) any and all 2025 USD Senior Notes for new senior secured notes (the “New 2025 USD Senior Notes”) having the same terms as the 2025 USD Senior Notes, other than the issue date, the first interest payment date, the first date from which interest will accrue and other than with respect to CUSIP and ISIN numbers and (b) any and all 2025 EUR Senior Notes for new senior secured notes (the “New 2025 EUR Senior Notes” and, together with the New 2025 USD Senior Notes, the “New 2025 Notes”) having the same terms as the 2025 EUR Senior Notes, other than the issue date, the first interest payment date, the first date from which interest will accrue and other than with respect to ISIN numbers and common codes and (ii) related consent solicitations to enter into supplemental indentures with respect to (a) the indenture governing the 2025 USD Senior Notes, dated as of July 20, 2020 (the “2025 USD Senior Notes Indenture”), and (b) the indenture governing the 2025 EUR Senior Notes, dated as of July 20, 2020 (the “2025 EUR Senior Notes Indenture” and, together with the 2025 USD Senior Notes Indenture, the “2025 Senior Notes Indentures”), in order to amend certain provisions of the 2025 Senior Notes Indentures to, among other things, permit the refinancing transactions set forth in the Transaction Support Agreement, dated as of October 20, 2022 (as amended, the “Transaction Support Agreement”), among the Company, certain of its subsidiaries and certain creditors (collectively, the “2025 Exchange Offers and Consent Solicitations” and, together with the 2024 Exchange Offer and Consent Solicitation, the “Exchange Offers and Consent Solicitations”).
The 2025 Exchange Offers and Consent Solicitations were completed on the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement, dated as of November 28, 2022 (as amended, the “2025 Offering Memorandum”), and the related eligibility letter.
Pursuant to the 2025 Exchange Offers and Consent Solicitations, the Company accepted $697,299,000 in aggregate principal amount of the 2025 USD Senior Notes (representing 99.61% of the aggregate principal amount of the outstanding 2025 USD Notes) tendered for exchange and issued $718,137,000 in aggregate principal amount of the New 2025 USD Senior Notes. The Dutch Issuer accepted €345,624,000 in aggregate principal amount of the 2025 EUR Senior Notes (representing 98.75% of the aggregate principal amount of the outstanding 2025 EUR Senior Notes) tendered for exchange and issued €355,950,000 aggregate principal amount of the New 2025 EUR Senior Notes. In addition, eligible holders received payment in cash for accrued and unpaid interest to, but excluding, the Settlement Date on the 2025 Senior Notes that were accepted for exchange.
In connection with the 2025 Exchange Offers and Consent Solicitations, the Company entered into supplemental indentures, each as described below.
Unit Agreement and Warrant Agreement
On the Settlement Date, the Company entered into (i) a unit agreement (the “Unit Agreement”), by and between the Company and U.S. Bank Trust Company, National Association, as Units Trustee, as trustee under the New Notes Indenture, and as warrant agent (the “Warrant Agent”) under the warrant agreement, and (ii) a warrant agreement (the “Warrant Agreement”), by and between the Company and the Warrant Agent.
Unit Agreement and Units
Each Unit is comprised of New Notes (the terms of which are set forth in the New Notes Indenture), and, for any principal amount of New Notes that is a part of Units, a number of Warrants (the terms of which are set forth in the Warrant Agreement). On the Settlement Date, the Company issued $333,616,814 in aggregate principal amount of Units consisting of $333,616,814 in aggregate principal amount of New Notes and 15,813,847 New Warrants to purchase up to 15,813,847 Common Shares. The Units were issued in minimum denominations of $2,000 principal amount and integral multiples of $1.00 principal amount in excess thereof, in the form of fully registered global securities, which were deposited with, or on behalf of, The Depository Trust Company (“DTC”) and registered in the name of a nominee of DTC.
The number of New Warrants attached to the Units will be subject to adjustment in the manner set forth in the Unit Agreement. For any principal amount of New Notes specified on the face of a Unit certificate representing definitive units or in the applicable schedule attached to any Unit certificate representing global units, the number of New Warrants exercisable for an aggregate number of Common Shares (referred to as the Unit Warrant Number) will be equal to the product of (a) (i) such principal amount of New Notes part of all outstanding Units (including any interest on New Notes that is paid, at the Company’s election, in accordance with the terms of the New Notes Indenture, by increasing the amount of outstanding New Notes or, with respect to any New Notes in definitive form, by issuing additional notes under the New Notes Indenture having the same terms as New Notes, if applicable (the “PIK Interest”)) divided by (ii) the aggregate principal amount of all outstanding New Notes (including any PIK Interest, if applicable, and any New Notes that may be issued as part of Units in the future) and (b) the Maximum Number of Warrant Shares, as described below, in each case, at any time of determination and, in each case, that are still part of Units and have not been split prior to the Unit Split Date (as defined below) calculated to the nearest 1/1000th of a warrant.
The Maximum Number of Warrant Shares means, initially, 15,813,847 Common Shares, subject to adjustment as follows: (i) if a Termination Event (as defined below) with respect to any portion of the principal amount of any Units occurs prior to April 1, 2024, the Maximum Number of Warrant Shares will be reduced proportionately to reflect the cancellation of New Warrants attached to such aggregate principal amount of Units; (ii) if a Unit Split Date occurs with respect to a portion but not all of the aggregate principal amount of Units, the Maximum Number of Warrant Shares will be proportionately reduced by a number equal to the product of (a) the sum of (1) the number of New Warrants separated as a result of the applicable Unit Split Date and (2) the number of New Warrants cancelled on account of any cash paid in lieu of delivery of any fractional New Warrants as provided in the Warrant Agreement, and (b) the then applicable Warrant Share Number (as defined below); and (iii) the Maximum Number of Warrant Shares shall also be adjusted at the same time, and in the same manner, as the Warrant Share Number is adjusted in respect of certain anti-dilution adjustments, dividends and other corporate events pursuant to the Warrant Agreement, as discussed below.
The New Notes and New Warrants may not be separately traded prior to the Unit Split Date. The Unit Split Date means, with respect to any Unit, the date on which such Unit is required to be separated into its constituent securities, which will occur on April 1, 2024, or, under certain circumstances, on an earlier date or dates in connection with the receipt by the Units Trustee of (i) a notice that with respect to any portion of the principal amount of any Unit, any prepayment, repurchase, redemption or other retiring of any portion of the principal amount of New Notes forming a part thereof has occurred (other than in connection with certain permitted equity issuance prepayments or a refinancing in connection with a change of control, in each case prior to April 1, 2024, as set forth in the New Notes Indenture (such permitted transaction, a “Termination Event”)) or (ii) a notice that an event
of default under the New Notes Indenture has occurred and the indebtedness has been accelerated. Prior to the applicable Unit Split Date, the Units will trade as a single unit, with each Unit issued in the 2024 Exchange Offer and Consent Solicitation trading under a single CUSIP (subject to separate CUSIPs required to comply with transfer restrictions). On the applicable Unit Split Date, with respect to such Units, the underlying New Notes and New Warrants will automatically separate and begin trading separately under separate CUSIPs, in each case, if not earlier redeemed, repaid, terminated or otherwise cancelled, as the case may be.
The Company has agreed to provide to eligible holders who exchanged the 2024 Senior Notes for Units in the 2024 Exchange Offer and Consent Solicitation with certain customary resale registration rights with respect to the Units and, following the Unit Split Date, the New Notes and New Warrants. The Company has agreed to use commercially reasonable efforts to file a resale registration statement and to effect such registration with respect to the Units no later than June 30, 2023.
Warrant Agreement and New Warrants
Each New Warrant will initially represent the right to purchase one Common Share, subject to adjustment (as adjusted, the “Warrant Share Number”), at an exercise price of $0.01 per share. The New Warrants will, in the aggregate and upon exercise, be exercisable for up to 15,813,847 Common Shares (representing 19.99% of the Common Shares outstanding on the business day immediately preceding the Settlement Date), subject to adjustment. Unless earlier cancelled in accordance with their terms, New Warrants can be exercised at any time on and after April 1, 2024 and prior to 5:00 p.m. New York City time on December 29, 2027 (or, if such day is not a business day, the next succeeding day that is a business day). No cash will be payable by a warrantholder in respect of the exercise price for a New Warrant upon exercise; rather, upon exercise, a holder of New Warrants will receive, on the applicable settlement date, a number of Common Shares equal to the greater of (i) zero and (ii) the product of (a) the number of warrant shares for such New Warrant as of the exercise date and (b) a fraction, the numerator of which is (x) the fair market value per share of the Common Shares as of the trading day immediately prior to the exercise date minus (y) the exercise price of $0.01 per share, and the denominator of which is the fair market value per share of the Common Shares as of the trading day immediately prior to the exercise date. The number of full shares issuable upon an exercise of New Warrants by a warrantholder at any time will be computed on the basis of the aggregate number of shares issuable pursuant to the New Warrants being exercised by such warrantholder as of the applicable exercise date.
If a Termination Event occurs with respect to any Units prior to April 1, 2024, the New Warrants forming part of such Units will automatically terminate and become void without further legal effect and will be cancelled for no further consideration, and all rights thereunder and all rights in respect thereof under the Warrant Agreement will cease as of such time.
As component parts of the Units, New Warrants were issued in minimum denominations of one warrant and integral multiples of one warrant in excess thereof and the Company will not issue any fractional New Warrants upon separation from the Units. If the Company would be required to issue a fractional New Warrant, the Company will, in lieu of such issuance, pay cash to the applicable warrantholder based on the fair market value of its Common Shares on the trading day immediately prior to the Unit Split Date. The description above is only a summary of the material provisions of the Unit Agreement and the Warrant Agreement and is qualified in its entirety by reference to the Unit Agreement and Warrant Agreement, which are filed as Exhibit 10.1 and Exhibit 10.2 hereto, respectively, and are incorporated herein by reference.
New Notes Indenture and New Notes
In connection with the issuance of the New Notes that form a part of the Units pursuant to the 2024 Exchange Offer and Consent Solicitation, the Company entered into an indenture, dated as of December 29, 2022 (the “New Notes Indenture”), among the Company, the Company’s subsidiary guarantors party thereto, U.S. Bank Trust Company, National Association, as trustee, and GLAS Americas LLC, as notes collateral agent, that provides for the issuance of the New Notes.
The New Notes are the Company’s senior secured obligations and are guaranteed by the Company’s material subsidiaries in the United States, Belgium, Canada, Germany, France, Italy, the Netherlands, Poland, Spain, Sweden and the United Kingdom (the “Specified Jurisdictions”), in each case, subject to agreed guaranty and security principles and certain exclusions. The obligations of the Company and the guarantors are secured (i) on a second-priority basis by certain Non-ABL Priority Collateral (as defined below) held by the Company and those guarantors that are organized in the United States, (ii) on a third-priority basis by certain other Non-ABL Priority Collateral held by the Company and the guarantors and (iii) on a fourth-priority basis by the ABL Priority Collateral (as defined below).
The New Notes will mature on October 15, 2026 and bear interest at a fixed rate of 8.50% per annum through July 15, 2025, after which interest will accrue at the rate of 8.50% (if paid in cash) or 12.50% (if paid in the form of PIK Interest (as defined in the New Notes Indenture)), subject to the applicable interest period determination election made for each applicable interest period after such date. The interest rate on the New Notes is subject to an immediate increase in the event that certain individuals are either not nominated by the Company for appointment to the Company’s board of directors at the next board of directors election or fail to be elected by the Company’s shareholders, by an additional 2.50% (with such increase being solely in the form of PIK
Interest) with respect to all remaining days in such interest period during which such board candidate failure event occurred and for all following interest periods.
Interest on the New Notes will be payable on January 15 and July 15 of each year, commencing on July 15, 2023. Interest will accrue from the Settlement Date.
The New Notes will be redeemable at the Company’s option, in whole or in part, at any time at 100% of their principal amount, together with accrued and unpaid interest, if any, to, but excluding, the date of redemption, subject to certain restrictions.
Upon the occurrence of specific kinds of changes of control, the Company will be required to make an offer to repurchase some or all of the New Notes at 101% of their principal amount, plus accrued and unpaid interest to, but excluding, the repurchase date, subject to certain restrictions. Further, if the Company or its subsidiaries sell assets, under certain circumstances, the Company will be required to use the net proceeds from such sales to make an offer to purchase New Notes at an offer price in cash in an amount equal to 100% of the principal amount of the New Notes plus accrued and unpaid interest to, but excluding, the repurchase date, subject to certain restrictions.
The New Notes Indenture contains covenants that, among other things, restrict the ability of the Company and its subsidiaries to incur additional indebtedness and guarantee indebtedness, pay dividends, prepay, redeem or repurchase certain debt, incur liens and to merge, consolidate or sell assets.
The description above is only a summary of the material provisions of the New Notes Indenture and is qualified in its entirety by reference to the New Notes Indenture, which is filed as Exhibit 4.1 hereto and is incorporated herein by reference.
Fifth Supplemental Indenture to the 2024 Senior Notes Indenture
In connection with the 2024 Exchange Offer and Consent Solicitation, the Company entered into a supplemental indenture (the “Fifth Supplemental Indenture”), dated as of December 29, 2022, with the Company’s subsidiary guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, to the 2024 Senior Notes Indenture. The Fifth Supplemental Indenture, among other things, (i) removed certain covenants, including those relating to (a) the payment of taxes, (b) maintenance of corporate existence, (c) filing and delivery of certain material financial information and current reports and annual compliance certificates, (d) future guarantors, (e) transactions with affiliates, (f) limitations on certain restricted payments, including paying a dividend or making any distribution other than solely in certain capital stock of the Company or by certain subsidiaries, (g) limitations on indebtedness, (h) limitations on liens, (i) limitations on restrictions on distributions from certain subsidiaries and (j) limitations on payments as an inducement to consent, waive or amend the terms or provisions of the 2024 Senior Notes Indenture; (ii) eliminated certain events of default, including certain events of default relating to non-compliance with certain covenants, failure to pay or acceleration of other material indebtedness and failure to pay certain judgments; and (iii) revised the definition of “Asset Disposition” to increase the de minimis threshold from $20 million to $2 billion in order for a disposition of assets in any single transaction or series of related transactions to qualify and be subject to the applicable asset sale offer covenants in the 2024 Senior Notes Indenture.
The description above is only a summary of the material provisions of the Fifth Supplemental Indenture and is qualified in its entirety by reference to the Fifth Supplemental Indenture, which is filed as Exhibit 4.2 hereto and are incorporated herein by reference.
Supplemental Indenture to the 2025 USD Senior Notes Indenture
In connection with the 2025 Exchange Offers and Consent Solicitations, the Company entered into a supplemental indenture (the “2025 USD Notes Supplemental Indenture”), dated as of December 29, 2022, with U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “2025 USD Trustee”) and existing notes collateral agent and GLAS Americas LLC, as new notes collateral agent, and the guarantors party thereto, to the 2025 USD Senior Notes Indenture. The 2025 USD Supplemental Indenture amends and restates the 2025 USD Senior Notes Indenture to, among other things, amend the covenants thereunder to permit the transactions contemplated by the Transaction Support Agreement, provide for the issuance of the New 2025 USD Senior Notes, provide for additional guarantees and collateral and replace the notes collateral agent.
The New 2025 USD Senior Notes are the Company’s senior secured obligations. The New 2025 USD Senior Notes and the 2025 USD Senior Notes that remain outstanding are guaranteed by the Company’s material subsidiaries in the Specified Jurisdictions, in each case, subject to agreed guaranty and security principles and certain exclusions. The obligations of the Company and the guarantors are secured (i) on a first-priority basis, ranking pari passu with the Superpriority Facility, the 2025 EUR Senior Notes, the New 2025 EUR Senior Notes and the Existing Term Loans (excluding released liens), by certain Non-ABL Priority Collateral held by the Company and those guarantors that are organized in the United States, (ii) on a second-priority basis by certain other Non-ABL Priority Collateral held by the Company and the guarantors and (iii) on a third-priority basis by the ABL Priority Collateral.
The New 2025 USD Senior Notes will mature on July 15, 2025 and bear interest at a rate of 9.375% per year from the Settlement Date.
Interest on the New 2025 USD Senior Notes will be payable on January 15 and July 15 of each year, commencing on January 15, 2023.
The New 2025 USD Senior Notes will be redeemable at the Company’s option, in whole or in part, upon not less than 15 nor more than 60 days’ notice mailed or otherwise sent to each holder, at 104.688% of their principal amount prior to July 15, 2023, 102.344% prior to July 15, 2024 and 100% thereafter, together with accrued and unpaid interest, if any, to, but excluding, the date of redemption, subject to certain restrictions.
Upon the occurrence of specific kinds of changes of control, the Company will be required to make an offer to repurchase some or all of the New 2025 USD Senior Notes at 101% of their principal amount, plus accrued and unpaid interest to, but excluding, the repurchase date, subject to certain restrictions. Further, if the Company or its subsidiaries sell assets, under certain circumstances, the Company will be required to use the net proceeds from such sales to make an offer to purchase the New 2025 USD Senior Notes at an offer price in cash in an amount equal to 100% of the principal amount of the New 2025 USD Senior Notes plus accrued and unpaid interest to, but excluding, the repurchase date, subject to certain restrictions.
The description above is only a summary of the material provisions of the 2025 USD Senior Notes Supplemental Indenture and is qualified in its entirety by reference to the 2025 USD Supplemental Indenture, which is filed as Exhibit 4.3 hereto and is incorporated herein by reference.
Supplemental Indenture to the 2025 EUR Senior Notes Indenture
In connection with the 2025 Exchange Offers and Consent Solicitations, the Dutch Issuer entered into a supplemental indenture (the “2025 EUR Notes Supplemental Indenture”), on December 29, 2022, with the Company, the Company’s subsidiary guarantors party thereto, U.S. Bank Trust Company, National Association, as trustee, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S Bank Trustees Limited, as existing notes collateral agent, and GLAS Americas LLC, as new notes collateral agent to the 2025 EUR Senior Notes Indenture. The 2025 EUR Notes Supplemental Indenture amends and restates the 2025 EUR Notes Supplemental Indenture to, among other things, amend the covenants under the 2025 EUR Senior Notes Indenture to permit the transactions contemplated by the Transaction Support Agreement, provide for the issuance of New 2025 EUR Senior Notes, provide for additional guarantees and collateral and replace the notes collateral agent.
The New 2025 EUR Senior Notes are the Dutch Issuer’s senior secured obligations. The New 2025 EUR Senior Notes and the 2025 EUR Senior Notes that remain outstanding are guaranteed by the Company and the Company’s material subsidiaries (other than the Dutch Issuer) in the Specified Jurisdictions, in each case, subject to agreed guaranty and security principles and certain exclusions. The obligations of the Dutch Issuer and the guarantors are secured (i) on a first-priority basis, ranking pari passu with the Superpriority Facility, the 2025 USD Senior Notes, the New 2025 USD Senior Notes and the Existing Term Loans (excluding released liens), by certain Non-ABL Priority Collateral held by the Company and those guarantors that are organized in the United States, (ii) on a second-priority basis by certain other Non-ABL Priority Collateral held by the Company and the guarantors and (iii) on a third-priority basis by the ABL Priority Collateral.
The New 2025 EUR Senior Notes will mature on July 15, 2025 and bear interest at a rate of 9.000% per year from the Settlement Date.
Interest on the New 2025 EUR Senior Notes will be payable on January 15 and July 15 of each year, commencing on January 15, 2023.
The New 2025 EUR Senior Notes will be redeemable at the Dutch Issuer’s option, in whole or in part, upon not less than 15 nor more than 60 days’ notice mailed or otherwise sent to each holder, at 104.500% of their principal amount prior to July 15, 2023, 102.250% prior to July 15, 2024 and 100% thereafter, together with accrued and unpaid interest, if any, to, but excluding, the date of redemption, subject to certain restrictions.
Upon the occurrence of specific kinds of changes of control, the Dutch Issuer will be required to make an offer to repurchase some or all of the New 2025 EUR Senior Notes at 101% of their principal amount, plus accrued and unpaid interest to, but excluding, the repurchase date, subject to certain restrictions. Further, if the Dutch Issuer or its subsidiaries sell assets, under certain circumstances, the Dutch Issuer will be required to use the net proceeds from such sales to make an offer to purchase the New 2025 EUR Senior Notes at an offer price in cash in an amount equal to 100% of the principal amount of the New 2025 EUR Senior Notes plus accrued and unpaid interest to, but excluding, the repurchase date, subject to certain restrictions.
The description above is only a summary of the material provisions of the 2025 EUR Supplemental Indenture and is qualified in its entirety by reference to the 2025 EUR Supplemental Indenture, which is filed as Exhibit 4.4 hereto and is incorporated herein by reference.
Transaction Premium and Securities Purchase
Pursuant to the Transaction Support Agreement, on the Settlement Date, a structuring premium (the “Structuring Premium”) was paid by the Company to certain Initial Consenting Holders (as defined in the Transaction Support Agreement), in cash, in an amount equal to $8,981,261.10, which was to be used by the recipients thereof to purchase Common Shares subject to certain conditions, and if those conditions were not satisfied those certain Initial Consenting Holders would retain the proceeds. While the Company and those certain Initial Consenting Holders entered into a Securities Purchase Agreement on the Settlement Date to purchase an aggregate of 2,829,726 Common Shares at a purchase price of $1.28 per Common Share, the conditions to that purchase will not be satisfied and the sale will not occur.
The Twelfth Amendment to the Existing Credit Agreement
On the Settlement Date, the Company entered into a twelfth amendment (the “Twelfth Amendment”) to the Credit Agreement, dated as of November 23, 2015 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing Credit Agreement”), among the Company, as borrower, the Company’s subsidiary borrowers party thereto, the guarantors party thereto, the lenders party thereto from time to time and JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Existing Administrative Agent”).
The Twelfth Amendment, among other things, (i) permits the Exchange Offers and Consent Solicitations, the Term Loan Exchange (as defined below), the Superpriority Facility (as defined below), the ABL Facility and certain other related transactions (together, the “Refinancing Transactions”), (ii) removes substantially all negative covenants and mandatory prepayment provisions from the Existing Credit Agreement and (iii) directs the collateral agent under the Existing Credit Agreement to release the liens on certain current-asset collateral securing the ABL Facility on a first-priority basis (the “ABL Priority Collateral”) and certain other collateral securing the Company’s obligations under the Existing Credit Agreement and the Company’s existing subsidiary guarantors’ obligations under the related guarantees (in each case, to the extent permitted, including under applicable law).
The Twelfth Amendment contains customary representations and warranties, and the effectiveness of the amendments set forth above was subject to the substantially simultaneous satisfaction of certain conditions including, among others, (i) execution of lender consents by at least 95% of all Existing Term Lenders (as defined below), (ii) receipt by the Existing Administrative Agent, the Majority Ad Hoc Parties (as defined in the Transaction Support Agreement) and the Majority Term Loan Parties (as defined in the Transaction Support Agreement) of evidence that the Refinancing Transactions would be consummated in accordance with the terms of the Transaction Support Agreement and (iii) receipt by the Existing Administrative Agent, the Majority Ad Hoc Parties and the Majority Term Loan Parties of evidence that the Initial New Term Loan Paydown (as defined below) would occur in accordance with the terms of the Transaction Support Agreement.
The description above is only a summary of the material provisions of the Twelfth Amendment and is qualified in its entirety by reference to the Twelfth Amendment, which is filed as Exhibit 10.3 hereto and is incorporated herein by reference.
Superpriority Credit Agreement
On the Settlement Date, the Company entered into a Credit Agreement (the “Superpriority Credit Agreement”), among the Company, Diebold Nixdorf Holding Germany GmbH (the “Superpriority Borrower”), the lenders party thereto, GLAS USA LLC, as administrative agent, and GLAS Americas LLC, as collateral agent, providing for a superpriority secured term loan facility of $400 million (the “Superpriority Facility”). On the Settlement Date, the Superpriority Borrower borrowed the full $400 million of term loans available under the Superpriority Credit Agreement, in the form of Term Benchmark Loans (as defined in the Superpriority Credit Agreement).
The proceeds of the borrowing under the Superpriority Facility were or will be used, respectively, (i) on the Settlement Date, to repay the New Term Loans (as defined below) in an amount equal to 15% of the principal amount of Existing Term Loans (as defined below) that participated in the Term Loan Exchange (the “Initial New Term Loan Paydown”), (ii) on December 31, 2023, to repay the New Term Loans in an amount equal to 5% of the principal amount (at the time of the Term Loan Exchange) of Existing Term Loans that participated in the Term Loan Exchange, subject to satisfaction of certain liquidity conditions, (iii) solely in the event that the repayment in (ii) is not made as a result of such liquidity conditions not being satisfied, on December 31, 2024, to repay the New Term Loans in an amount equal to 5% of the principal amount (at the time of the Term Loan Exchange) of Existing Term Loans that participated in the Term Loan Exchange, subject to satisfaction of the same liquidity condition measured on a pro forma basis on December 31, 2024 and (iv) for general corporate purposes (excluding making payments on any other funded indebtedness).
Loans under the Superpriority Facility (the “Superpriority Loans”) will mature on July 15, 2025. The Superpriority Loans bear interest equal to (i) in the case of Term Benchmark Loans, the Adjusted Term SOFR Rate (as defined in the Superpriority Credit Agreement and subject to a 4.0% floor) plus a 0.10% credit spread adjustment plus an applicable margin of 6.40% and (ii) in the case of Floating Rate Loans (as defined in the Superpriority Credit Agreement), the Alternate Base Rate (as defined in the Superpriority Credit Agreement and subject to a 5.0% floor) plus an applicable margin of 5.40%. Interest accrued on the Superpriority Loans is payable (i) in the case of Term Benchmark Loans, on the last day of the applicable Interest Period (as defined in the Superpriority Credit Agreement) (provided that, if the Interest Period is longer than three months, interest is also payable on the last day of each three-month interval during such Interest Period), on any date on which the Term Benchmark Loans are repaid, and at maturity, and (ii) in the case of Floating Rate Loans, on the last business day of each March, June, September and December occurring after the Settlement Date, beginning with March 31, 2023, and at maturity.
Pursuant to the Transaction Support Agreement, the Superpriority Borrower paid a fee to the lenders under the Superpriority Facility in an amount equal to 6.40% per annum of such lenders’ commitments (the “Ticking Fee”), which began accruing on December 20, 2022 until the Settlement Date. The total amount of the Ticking Fee paid to all lenders was $631,233, and was paid in the form of additional Superpriority Loans on the Settlement Date.
The obligations of the Superpriority Borrower under the Superpriority Facility are guaranteed, subject to certain exclusions and agreed guaranty and security principles, by the Company and the Company’s material subsidiaries in the Specified Jurisdictions and secured (i) on a first-priority basis by substantially all assets (subject to agreed guaranty and security principles and certain exclusions) other than the ABL Priority Collateral (the “Non-ABL Priority Collateral”) held by the Superpriority Borrower and those guarantors that are organized outside the United States and certain Non-ABL Priority Collaterial held by the Company and those guarantors that are organized in the United States, (ii) on a first-priority basis, ranking pari passu with the New Term Loans, the 2025 Senior Notes, the New 2025 Notes and the Existing Term Loans (excluding released liens), by certain Non-ABL Priority Collateral held by the Company and those guarantors that are organized in the United States and (iii) on a second-priority basis by the ABL Priority Collateral.
The Superpriority Borrower may prepay the Superpriority Loans at any time; provided that voluntary prepayments and certain mandatory prepayments made (i) prior to December 29, 2024 must be accompanied by a customary make-whole premium and (ii) on or after December 29, 2024 must be accompanied by a premium of 5.00% of the aggregate principal amount of the loans being prepaid. The Superpriority Credit Agreement additionally provides that the Superpriority Borrower is required to prepay the Superpriority Loans in certain circumstances, including (i) in connection with asset sales, where mandatory prepayments must be made with the proceeds of such asset sales and accompanied by a premium of 1.00% of the aggregate principal amount of the loans being prepaid, and (ii) in connection with change of control and certain other transformative transactions, where prepayments must be accompanied by a premium of 5.00% of the aggregate principal amount of the loans being prepaid. Amounts borrowed and repaid under the Superpriority Facility may not be reborrowed.
The Superpriority Credit Agreement contains affirmative and negative covenants customary for facilities of its type, including, but not limited to, delivery of financial information, limitations on mergers, consolidations and fundamental changes, limitations on sales of assets, limitations on investments and acquisitions, limitations on liens, limitations on transactions with affiliates, limitations on indebtedness, limitations on negative pledge clauses, limitations on restrictions on subsidiary distributions, limitations on restricted payments and limitations on certain payments of indebtedness. The Superpriority Credit Agreement contains restrictions on making repayments of certain junior indebtedness prior to their maturity, subject to certain specified repayment conditions.
The Superpriority Credit Agreement provides for certain customary events of default, including, but not limited to, nonpayment of principal, interest, fees or other amounts, breach of covenants, cross default and cross acceleration to material indebtedness, voluntary and involuntary bankruptcy or insolvency proceedings, unpaid material judgments and change of control.
The description above is only a summary of the material provisions of the Superpriority Credit Agreement and is qualified in its entirety by reference to the Superpriority Credit Agreement, which is filed as Exhibit 10.4 hereto and is incorporated herein by reference.
Term Loan Exchange and New Term Loan Credit Agreement
On December 16, 2022, the Company made an offer to (i) each of the lenders (collectively, the “Existing Dollar Term Lenders”) holding certain dollar term loans (the “Existing Dollar Term Loans”) under the Existing Credit Agreement providing for the opportunity to exchange all (but not less than all) of the principal amount of its Existing Dollar Term Loans for the same principal amount of Dollar Term Loans (the “New Dollar Term Loans”) as defined in and made pursuant to the New Term Loan Credit Agreement (as defined below), plus the Transaction Premium (as defined in the Twelfth Amendment), and (ii) each of the lenders (collectively, the “Existing Euro Term Lenders” and together with the Existing Dollar Term Lenders, the “Existing Term Lenders”) holding certain euro term loans (the “Existing Euro Term Loans” and together with the Existing Dollar Term Loans, the “Existing Term Loans”; the loan facility for the Existing Term Loans, the “Existing Term Loan Facility”) providing for the opportunity to exchange all (but not less than all) of the principal amount of its Existing Euro Term Loans for either (a) the same principal amount of Euro Term Loans (the “New Euro Term Loans” and together with the New Dollar Term Loans, the “New
Term Loans”; the loan facility for the New Term Loans, the “New Term Loan Facility”) as defined in and made pursuant to the New Term Loan Credit Agreement or (b) the same principal amount of New Dollar Term Loans (with the exchange rate used for such conversion of the existing principal amount denominated in euros to the equivalent new principal amount denominated in dollars determined by reference to the WMR 4pm London Mid Spot Rate published by Refinitiv at 4:00 p.m. (London Time) on the date that was two business days prior to the Settlement Date), in each case, plus the Transaction Premium (collectively, clauses (i) and (ii), the “Term Loan Exchange Offer” and the exchange pursuant to the Term Loan Exchange Offer, the “Term Loan Exchange”).
On the Settlement Date, the Company completed the Term Loan Exchange whereby approximately 96.4% of the aggregate principal amount of Existing Dollar Term Loans and approximately 98.6% of the aggregate principal amount of Existing Euro Term Loans, were exchanged into $626.0 million (including a transaction premium of $18.2 million) in aggregate principal amount of New Dollar Term Loans, and €106.0 million (including a transaction premium of € 3.1 million) in aggregate principal amount of New Euro Term Loans, made pursuant to a Credit Agreement (the “New Term Loan Credit Agreement”), dated as of the Settlement Date, among the Company, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and GLAS Americas LLC, as collateral agent.
Substantially concurrently with the completion of the Exchange Offer, the Company prepaid the New Term Loans in an aggregate principal amount of $91.2 million New Dollar Term Loans and €15.4 million New Euro Term Loans, pursuant to the Initial New Term Loan Paydown and consistent with the Transaction Support Agreement. On December 31, 2023, the Company will prepay $30.4 million in aggregate principal amount of the New Dollar Term Loans and €5.1 million in aggregate principal amount of the New Euro Term Loans, subject to satisfaction of certain liquidity conditions.
As a result of the Term Loan Exchange, the Company’s obligations in respect of the Existing Term Loans of each lender who participated in the Term Loan Exchange were discharged and deemed satisfied in full, and each such lender’s commitments with respect to the Existing Term Loans were canceled.
The terms of the New Term Loans are governed by the New Term Loan Credit Agreement, which provides that the New Term Loans will mature on July 15, 2025. The New Term Loans bear interest at a rate equal to (i) in the case of Term Benchmark Loans (as defined in the New Term Loan Credit Agreement), (a) for New Dollar Term Loans, the Adjusted Term SOFR Rate (as defined in the New Term Loan Credit Agreement and subject to a 1.50% floor) plus a 0.10% credit spread adjustment plus an applicable margin of 5.25% and (b) for New Euro Term Loans, the Adjusted EURIBOR Rate (as defined in the New Term Loan Credit Agreement and subject to a 0.50% floor) plus an applicable margin of 5.50% and (ii) in the case of Floating Rate Loans (as defined in the New Term Loan Credit Agreement), the Alternate Base Rate (as defined in the New Term Loan Credit Agreement and subject to a 2.50% floor) plus an applicable margin of 4.25%. Interest accrued on the Term Loans is payable (i) in the case of Term Benchmark Loans, on the last day of the applicable Interest Period (as defined in the New Term Loan Credit Agreement) (provided that, if the Interest Period is longer than three months, interest is also payable on the last day of each three-month interval during such Interest Period), on any date on which the Term Benchmark Loans are repaid and at maturity, (ii) in the case of Floating Rate Loans, on the last business day of each March, June, September and December occurring after the Settlement Date, beginning with March 31, 2023, and at maturity.
The obligations of the Company under the New Term Loan Credit Agreement are guaranteed, subject to certain exclusions and agreed guaranty and security principles, by the Company’s material subsidiaries in the Specified Jurisdictions and secured (i) on a first-priority basis, ranking pari passu with the Superpriority Facility, the 2025 Senior Notes, the New 2025 Notes and the Existing Term Loans (excluding released liens), by certain Non-ABL Priority Collateral held by the Company and those guarantors that are organized in the United States, (ii) on a second-priority basis by certain other Non-ABL Priority Collateral held by the guarantors that are organized outside the United States and (iii) on a third-priority basis by the ABL Priority Collateral.
The New Term Loan Credit Agreement contains affirmative and negative covenants customary for facilities of its type, including, but not limited to, delivery of financial information, limitations on mergers, consolidations and fundamental changes, limitations on sales of assets, limitations on investments and acquisitions, limitations on liens, limitations on transactions with affiliates, limitations on indebtedness, limitations on negative pledge clauses, limitations on restrictions on subsidiary distributions, limitations on restricted payments and limitations on certain payments of indebtedness.
The New Term Loan Credit Agreement provides that the Company may prepay the New Term Loans at any time without premium or penalty, subject to restrictions contained in the documentation governing the Company’s other indebtedness. The New Term Loan Credit Agreement additionally provides that the Company will be required to prepay the New Term Loans in certain circumstances (without premium), including with the proceeds of asset sales and in connection with change of control transactions. Once repaid, the New Term Loans may not be reborrowed.
The description above is only a summary of the material provisions of the New Term Loan Credit Agreement and is qualified in its entirety by reference to the New Term Loan Credit Agreement, which are filed as Exhibit 10.5 hereto and is incorporated herein by reference.
Revolving Credit and Guaranty Agreement
On the Settlement Date, the Company entered into a Revolving Credit and Guaranty Agreement (the “ABL Credit Agreement”), among the Company, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, GLAS AMERICAS LLC, as European collateral agent, the subsidiary borrowers (together with the Company, the “ABL Borrowers”) and guarantors party thereto and the lenders party thereto. The ABL Credit Agreement provides for an asset-based revolving credit facility (the “ABL Facility”) consisting of three Tranches (respectively, “Tranche A,” “Tranche B” and “Tranche C”) with a total commitment of up to $250 million, including a Tranche A commitment of up to $155 million, a Tranche B commitment of up to $25 million and a Tranche C commitment of up to $70 million. Letters of credit are limited to the lesser of (i) $50 million and (ii) the aggregate unused amount of the applicable lenders’ Tranche A commitments then in effect. Swing line loans are limited to the lesser (i) $50 million and (ii) in respect of an applicable borrower, such borrower’s Tranche A available credit then in effect. Subject to currencies available under the applicable Tranche, loans under the ABL Facility may be denominated, depending on the Tranche being drawn, in U.S. Dollars, Canadian Dollars, Euros and Pounds Sterling. The ABL Facility replaced the commitments of the Company’s existing revolving credit lenders under the Existing Credit Agreement, which were repaid in full and terminated on the Settlement Date.
On the Settlement Date, certain ABL Borrowers borrowed a total of $182 million under the ABL Facility, consisting of $122 million of Tranche A loans and $60 million of Tranche C loans. The proceeds of borrowing under the ABL Facility were or will be used, as applicable, (i) to finance the Refinancing Transactions, including the repayment of revolving loans outstanding under the Existing Credit Agreement on the Settlement Date, (ii) to finance the ongoing working capital requirements of the ABL Borrowers and their respective subsidiaries and (iii) for other general corporate purposes.
The ABL Facility will mature on July 20, 2026, subject to a springing maturity to a date that is 91 days prior to the maturity date of any indebtedness for borrowed money (other than any Existing Term Loans or 2024 Senior Notes that were not exchanged in connection with the Refinancing Transaction) in an aggregate principal amount of more than $25 million incurred by the Company or any of its subsidiaries. Loans under the ABL Facility bear interest determined by reference to a benchmark rate plus a margin of between 1.50% and 3.00%, in each case, depending on the amount of excess availability, the currency of the loans and the type of loans under the ABL Facility. A commitment fee equal to 0.50% per annum of the average daily unused portion is also payable quarterly by the ABL Borrowers under the ABL Facility.
The ABL Borrowers may borrow only up to the lesser of the level of the then-current borrowing base and the committed maximum borrowing capacity of $250 million, subject to certain sub-caps that are applicable under the facility.
The obligations of the ABL Borrowers under the ABL Facility are guaranteed, subject to certain exclusions and agreed guaranty and security principles, by the Company’s material subsidiaries in the Specified Jurisdictions and secured (i) on a first-priority basis by the ABL Priority Collateral, and (ii) on a junior-most priority basis by the Non-ABL Priority Collateral.
Borrowers under the ABL Facility may voluntarily repay outstanding loans thereunder at any time, without prepayment premium, subject to certain customary “breakage” costs. Amounts borrowed and repaid under the ABL Facility may be reborrowed.
The ABL Credit Agreement contains affirmative and negative covenants customary for facilities of its type, including, but not limited to, delivery of financial information, limitations on mergers, consolidations and fundamental changes, limitations on sales of assets, limitations on investments and acquisitions, limitations on liens, limitations on transactions with affiliates, limitations on indebtedness, limitations on negative pledge clauses, limitations on restrictions on subsidiary distributions, limitations on restricted payments and limitations on certain payments of indebtedness. The ABL Facility also requires the maintenance of a minimum Fixed Charge Coverage Ratio (as defined in the ABL Credit Agreement) of 1.00 to 1.00 for the four-fiscal-quarter period immediately preceding such date when excess availability is less than the greater of $25 million and 10% of the Line Cap (as defined in the ABL Credit Agreement) then in effect.
The ABL Credit Agreement contains customary events of default, including, but not limited to, nonpayment of principal, interest, fees or other amounts, breach of covenants, cross default and cross acceleration to material indebtedness, voluntary and involuntary bankruptcy or insolvency proceedings, unpaid material judgments and change of control.
The description above is only a summary of the material provisions of the ABL Credit Agreement and is qualified in its entirety by reference to the ABL Credit Agreement, which is filed as Exhibit 10.6 hereto and is incorporated herein by reference.
| | | | | | | | |
| | |
| Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosure contained in Item 1.01 above is incorporated herein by reference.
| | | | | | | | |
| | |
| Item 3.02 Unregistered Sales of Equity Securities. | |
The disclosure contained in Item 1.01 above is incorporated herein by reference.
| | | | | | | | |
| | |
| Item 9.01 Financial Statements and Exhibits | |
| | | | | | | | | | | | | | |
| (d) Exhibits. | | |
| | | |
| Exhibit | | |
| Number | | Description |
| | Indenture, dated as of December 29, 2022, among Diebold Nixdorf, Incorporated, the subsidiary guarantors party thereto, U.S. Bank Trust Company, National Association, as trustee, and GLAS Americas LLC, as collateral agent |
| | Fifth Supplemental Indenture, dated as of December 29, 2022, to the Indenture, dated as of April 19, 2016, among Diebold Nixdorf, Incorporated, the subsidiary guarantors party thereto and U.S Bank Trust Company, National Association, as trustee |
| | Supplemental Indenture, dated as of December 29, 2022, to the Indenture, dated as of July 20, 2020, among Diebold Nixdorf, Incorporated, the subsidiary guarantors party thereto, U.S. Bank Trust Company, National Association, as trustee and existing notes collateral agent, and GLAS Americas LLC, as new notes collateral agent |
| | Supplemental Indenture, dated as of December 29, 2022, to the Indenture, dated as of July 20, 2020, among Diebold Nixdorf, Incorporated, Diebold Nixdorf Dutch Holding B.V., the subsidiary guarantors party thereto, U.S. Bank Trust Company, National Association, as trustee, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S Bank Trustees Limited, as existing notes collateral agent and GLAS Americas LLC, as collateral agent |
| | |
| | |
| | |
| | Credit Agreement, dated as of December 29, 2022, among Diebold Nixdorf, Incorporated, Diebold Nixdorf Holding Germany GmbH, the lenders party thereto, GLAS USA LLC, as administrative agent, and GLAS Americas LLC, as collateral agent |
| | Credit Agreement, dated as of December 29, 2022, among Diebold Nixdorf, Incorporated, the lenders party thereto, JPMorgan Chase Bank, N.A., administrative agent, and GLAS Americas LLC, as collateral agent |
| | Revolving Credit and Guaranty Agreement, dated as of December 29, 2022, among Diebold Nixdorf, Incorporated, the subsidiary borrowers and guarantors party thereto, the lenders party thereto, JPMorgan Chase Bank, N.A. and PNC Capital Markets LLC, as joint lead arrangers and joint bookrunners, JPMorgan Chase Bank, N.A., as administrative agent and collateral agent, GLAS Americas LLC, as European collateral agent, JPMorgan Chase Bank, N.A. and PNC Bank, National Association, as co-syndication agents, and Bank of America, N.A. and Deutsche Bank, as co-documentation agents |
| 104 | | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
| | | | | | | | | | | | | | |
| | | | |
| | | Diebold Nixdorf, Incorporated |
| Date: | January 05, 2023 | By: | /s/ Jonathan B. Leiken |
| | | Name: | Jonathan B. Leiken |
| | | Title: | Executive Vice President, and Chief Legal Officer and Secretary |
Exhibit 4.1
SENIOR SECURED PIK TOGGLE NOTES INDENTURE
Dated as of December 29, 2022 Among
DIEBOLD NIXDORF, INCORPORATED
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee and
GLAS AMERICAS LLC,
as Notes Collateral Agent
8.50%/12.50% SENIOR SECURED PIK TOGGLE NOTES DUE 2026
CROSS-REFERENCE TABLE*
| | | | | | | | |
Trust Indenture Act Section | | Indenture Section |
| 310(a)(1) | | 7.10 |
| (a)(2) | | 7.10 |
| (a)(3) | | N.A. |
| (a)(4) | | N.A. |
| (a)(5) | | 7.10 |
| (b) | | 7.10 |
| 311(a) | | 7.11 |
| (b) | | 7.11 |
| 312(a) | | 2.05 |
| (b) | | 2.05; 13.03 |
| (c) | | 13.03 |
| 313(a) | | 7.06 |
| (b) | | 11.07 |
| (b)(2) | | 7.06; 7.07 |
| (c) | | 7.06; 13.02 |
| (d) | | 7.06 |
| 314(a) | | 4.06; 13.02; 13.05 |
| (b) | | 11.07 |
| (c)(1) | | 13.04 |
| (c)(2) | | 13.04 |
| (c)(3) | | N.A. |
| (d) | | 11.07. |
| (e) | | 13.05 |
| (f) | | N.A. |
| 315(a) | | 7.01 |
| (b) | | 7.05; 13.02 |
| (c) | | 7.01 |
| (d) | | 7.01 |
| (e) | | 6.14 |
316(a)(last sentence) | | 2.09 |
| (a)(1)(A) | | 6.05 |
| (a)(1)(B) | | 6.04 |
| (a)(2) | | N.A. |
| (b) | | 6.07 |
| (c) | | 1.05; 2.12; 9.04 |
| 317(a)(1) | | 6.08 |
| (a)(2) | | 6.12 |
| (b) | | 2.04 |
| 318(a) | | 13.01 |
| (b) | | N.A. |
| (c) | | 13.01 |
N.A. means not applicable.
* This Cross-Reference Table is not part of this Indenture.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Definitions 1
Section 1.02 Other Definitions 53
Section 1.03 Rules of Construction 55
Section 1.04 Incorporation by Reference of Trust Indenture Act 56
Section 1.05 Acts of Holders 56
Section 1.06 Quebec Interpretive Provisions 58
Section 1.07 French Terms 59
Section 1.08 Spanish Terms and Definitions 60
Section 1.09 Dutch Terms 61
Section 1.10 Swedish Terms. 62
ARTICLE 2 THE NOTES 63
Section 2.01 Form and Dating; Terms 63
Section 2.02 Execution and Authentication 65
Section 2.03 Registrar and Paying Agent 65
Section 2.04 Paying Agent to Hold Money in Trust 66
Section 2.05 Holder Lists 66
Section 2.06 Transfer and Exchange 66
Section 2.07 Replacement Notes 67
Section 2.08 Outstanding Notes 68
Section 2.09 Treasury Notes 68
Section 2.10 Temporary Notes 69
Section 2.11 Cancellation 69
Section 2.12 Defaulted Interest 69
Section 2.13 CUSIP and ISIN Numbers 70
Section 2.14 Component of Units 70
Section 2.15 Italian Usury Law 70
ARTICLE 3 REDEMPTION 70
Section 3.01 Notices to Trustee 70
Section 3.02 Selection of Notes to Be Redeemed or Purchased 71
Section 3.03 Notice of Redemption 71
Section 3.04 Effect of Notice of Redemption 72
Section 3.05 Deposit of Redemption or Purchase Price 72
Section 3.06 Notes Redeemed or Purchased in Part 73
Section 3.07 Optional Redemption 73
Section 3.08 Mandatory Redemption 74
Section 3.09 [Reserved] 74
Section 3.10 Offers to Repurchase by Application of Excess Proceeds 74
ARTICLE 4 COVENANTS 76
Section 4.01 Payment of Notes 76
Section 4.02 Maintenance of Office or Agency 77
Section 4.03 Taxes 77
Section 4.04 Stay, Extension and Usury Laws 77
Section 4.05 Corporate Existence 77
Section 4.06 Reports and Other Information 78
Section 4.07 Compliance Certificate 79
Section 4.08 Limitation on Restricted Payments 79
Section 4.09 Limitation on Indebtedness 84
Section 4.10 Limitation on Liens 88
Section 4.11 Future Guarantors 88
Section 4.12 Limitation on Restrictions on Distribution From Subsidiaries 89
Section 4.13 [Reserved] 91
Section 4.14 Transactions with Affiliates 91
Section 4.15 Offer to Repurchase Upon Change of Control 93
Section 4.16 Asset Dispositions 95
Section 4.17 Effectiveness of Covenants 98
Section 4.18 [Reserved] 99
Section 4.19 Additional Amounts 99
Section 4.20 Collateral and Guarantee Requirements 102
ARTICLE 5 SUCCESSORS 102
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets 102
ARTICLE 6 DEFAULTS AND REMEDIES 104
Section 6.01 Events of Default 104
Section 6.02 Acceleration 107
Section 6.03 Other Remedies 108
Section 6.04 Waiver of Past Defaults 108
Section 6.05 Control by Majority 109
Section 6.06 Limitation on Suits 109
Section 6.07 Rights of Holders to Receive Payment 109
Section 6.08 Collection Suit by Trustee 110
Section 6.09 Restoration of Rights and Remedies 110
Section 6.10 Rights and Remedies Cumulative 110
Section 6.11 Delay or Omission Not Waiver 110
Section 6.12 Trustee May File Proofs of Claim 110
Section 6.13 Priorities 111
Section 6.14 Undertaking for Costs 111
ARTICLE 7 TRUSTEE AND COLLATERAL AGENT 112
Section 7.01 Duties of Trustee and Notes Collateral Agent 112
Section 7.02 Rights of Trustee and Notes Collateral Agent 113
Section 7.03 Individual Rights of Trustee and Notes Collateral Agent 115
Section 7.04 Disclaimer 115
Section 7.05 Notice of Defaults 115
Section 7.06 Reports by Trustee to Holders of the Notes 116
Section 7.07 Compensation and Indemnity 116
Section 7.08 Appointment of the Notes Collateral Agent 117
Section 7.09 Replacement of Trustee or Notes Collateral Agent 119
Section 7.10 Successor by Merger, etc. 120
Section 7.11 Eligibility; Disqualification 120
Section 7.12 Preferential Collection of Claims Against the Company 120
Section 7.13 Collateral Documents; Intercreditor Agreements 120
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 121
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance 121
Section 8.02 Legal Defeasance and Discharge 121
Section 8.03 Covenant Defeasance 122
Section 8.04 Conditions to Legal or Covenant Defeasance 122
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions 124
Section 8.06 Repayment to the Company 124
Section 8.07 Reinstatement 124
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 125
Section 9.01 Without Consent of Holders 125
Section 9.02 With Consent of Holders 127
Section 9.03 Compliance with Trust Indenture Act 129
Section 9.04 Revocation and Effect of Consents 129
Section 9.05 Notation on or Exchange of Notes 129
Section 9.06 Trustee and Notes Collateral Agent to Sign Amendments, etc. 130
Section 9.07 Payments for Consent 130
ARTICLE 10 GUARANTEES 131
Section 10.01 Guarantee 131
Section 10.02 Limitation on Guarantor Liability 132
Section 10.03 Execution and Delivery 139
Section 10.04 Subrogation 139
Section 10.05 Benefits Acknowledged 139
Section 10.06 Release of Note Guarantees 139
Section 10.07 Spanish Law Particularities 140
ARTICLE 11 COLLATERAL AND SECURITY 141
Section 11.01 Collateral 141
Section 11.02 Maintenance of Collateral 143
Section 11.03 Impairment of Collateral 144
Section 11.04 Further Assurances 144
Section 11.05 After-Acquired Property 145
Section 11.06 Real Estate Mortgages and Filings 145
Section 11.07 Release of Liens on the Collateral 146
Section 11.08 Information Regarding Collateral 148
Section 11.09 Collateral Documents and Intercreditor Agreements 148
Section 11.10 Suits to Protect the Collateral. 149
Section 11.11 Authorization of Receipt of Funds by the Trustee Under the Collateral
Documents 149
Section 11.12 Purchaser Protected 149
Section 11.13 Powers Exercisable by Receiver or Trustee 150
Section 11.14 Spanish Particularities in Relation to any Spanish Collateral Documents 150
ARTICLE 12 SATISFACTION AND DISCHARGE 151
Section 12.01 Satisfaction and Discharge 151
Section 12.02 Application of Trust Money. 152
ARTICLE 13 MISCELLANEOUS 152
Section 13.01 Trust Indenture Act Controls 152
Section 13.02 Notices 152
Section 13.03 Communication by Holders with Other Holders 154
Section 13.04 Certificate and Opinion as to Conditions Precedent 154
Section 13.05 Statements Required in Certificate or Opinion 154
Section 13.06 Rules by Trustee and Agents 155
Section 13.07 No Personal Liability of Directors, Officers, Employees, Members, Partners
and Shareholders 155
Section 13.08 Governing Law 155
Section 13.09 Consent to Jurisdiction and Service of Process; Waiver of Jury Trial 155
Section 13.10 Force Majeure 156
Section 13.11 No Adverse Interpretation of Other Agreements 156
Section 13.12 Successors 156
Section 13.13 Severability 156
Section 13.14 Counterpart Originals 156
Section 13.15 Table of Contents, Headings, etc. 156
Section 13.16 PDF Delivery of Signature Pages 157
Section 13.17 U.S.A. PATRIOT Act 157
Section 13.18 Payments Due on Non-Business Days 157
Section 13.19 Spanish Provisions Relating to Executive Proceedings 157
Section 13.20 Parallel Debt; Parallel Debt Owed to the Notes Collateral Agent 159
Section 13.21 Judgment Currency 160
Appendix A Provisions Relating to Notes Appendix B Agreed Security Principles Appendix C Foreign Collateral Documents Appendix D Post-Closing Matters
Exhibit A Form of Note
Exhibit B Form of Institutional Accredited Investor Transferee Letter of Representation Exhibit C Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors Exhibit D Form of Unit Agreement
Exhibit E Form of Company Notification of PIK Interest Election
Exhibit F Form of Company Notification and Direction to the Trustee Under Section 2.01 of the Indenture Regarding the Payment of PIK Interest
Exhibit G Termination Event Notice
Exhibit H Prohibited Event Unit Split Date Notice Exhibit I Indenture Default Notice
INDENTURE, dated as of December 29, 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Guarantors listed on the signature pages hereto and U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “Trustee”) and GLAS Americas LLC, as notes collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, the Company has duly authorized the creation of and issue of $333,616,814 aggregate principal amount of 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (the “Initial Notes”) (provided that the principal amount of the Initial Notes authorized and outstanding may be increased in connection with PIK Interest (as defined below)); and
WHEREAS, the Guarantors have duly authorized the execution and delivery of this
Indenture;
NOW, THEREFORE, the Company, the Guarantors, the Trustee and the Notes Collateral
Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“2023 Credit Facility” means that certain credit agreement, dated as of November 23, 2015, among the Company, the guarantors parties thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“2023 Credit Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the 2023 Credit Facility, or any successor representative acting in such capacity.
“2023 Credit Facility Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the collateral agent under the 2023 Credit Facility, or any successor representative acting in such capacity.
“2024 Notes” means the Company’s 8.5% Senior Notes due 2024 issued pursuant to the 2024 Notes Indenture.
“2024 Notes Indenture” means that certain indenture, dated as of April 19, 2016, among the Company, as issuer, the subsidiary guarantors party thereto from time to time, and the 2024 Trustee, as amended or supplemented from time to time, relating to the Company’s 8.5% Senior Notes due 2024.
“2024 Trustee” means U.S. Bank Trust Company, National Association.
“2025 Credit Facility” means that certain credit agreement, dated as of the Issue Date, among the Company, the guarantors parties thereto, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, and the lenders parties thereto from time to time, as amended and
as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“2025 Credit Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the 2025 Credit Facility, or any successor representative acting in such capacity.
“2025 Credit Facility Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Credit Facility, or any successor representative acting in such capacity.
“2025 Credit Facility Obligations” means the “Obligations” as defined in the 2025 Credit
Facility.
“2025 Euro Notes” means the Dutch Issuer Guarantor’s 9.000% Senior Secured Notes
due 2025 issued pursuant to the 2025 Euro Notes Indenture.
“2025 Euro Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Euro Notes Indenture, or any successor representative acting in such capacity.
“2025 Euro Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Dutch Issuer Guarantor, as issuer, the Company, as guarantor, the subsidiary guarantors from time to time party thereto, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, the 2025 Euro Notes Trustee and the 2025 Euro Notes Collateral Agent, as amended, amended and restated, or supplemented from time to time, relating to the Dutch Issuer Guarantor’s 9.000% Notes due 2025.
“2025 Euro Notes Trustee” means U.S. Bank Trust Company, National Association, until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 Euro Notes Indenture and thereafter means the successor serving thereunder.
“2025 Notes” means the 2025 U.S. Notes and the 2025 Euro Notes.
“2025 Notes Collateral Agents” means the 2025 U.S. Notes Collateral Agent and the 2025 Euro Notes Collateral Agent.
“2025 Notes Indentures” means the 2025 U.S. Notes Indenture and the 2025 Euro Notes
Indenture.
“2025 Notes Trustees” means the 2025 U.S. Notes Trustee and the 2025 Euro Notes Trustee.
“2025 U.S. Notes” means the Company’s 9.375% Senior Secured Notes due 2025 issued
pursuant to the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 U.S. Notes Indenture, or any successor representative acting in such capacity.
“2025 U.S. Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Company, as issuer, the subsidiary guarantors from time to time party thereto, the 2025 U.S. Notes Trustee and the 2025 U.S. Notes Collateral Agent, as amended, amended and restated, or supplemented from time to time, relating to the Company’s 9.375% Notes due 2025.
“2025 U.S. Notes Trustee” means U.S. Bank Trust Company, National Association, until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 U.S. Notes Indenture and thereafter means the successor serving thereunder.
“ABL Agreement” means the collective reference to (a) the ABL Facility, (b) any Additional ABL Agreement and (c) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been Incurred to extend, replace, refinance or refund in whole or in part the Indebtedness and other obligations outstanding under the ABL Facility (regardless of whether such replacement, refunding or refinancing is a “working capital” facility, asset- based facility or otherwise), any Additional ABL Agreement or any other agreement or instrument referred to in this clause (c) unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Agreement hereunder (a “Replacement ABL Agreement”). Any reference to the ABL Agreement hereunder shall be deemed a reference to any ABL Agreement then extant.
“ABL Collateral Agent” means (a) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party other than an ABL Loan Party incorporated under the laws of a Specified Jurisdiction (other than Canada), JPMorgan Chase Bank, N.A. (together with its successors and assigns), as collateral agent for the ABL Secured Parties, (b) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party incorporated under the laws of a Specified Jurisdiction (other than Canada), GLAS Americas LLC (together with its successors and assigns) as collateral agent for the ABL Secured Parties and (c) in the case of any Replacement ABL Agreement or any other ABL Agreement, the Person identified as such in such agreement.
“ABL Creditors” means collectively, the “Lenders” and the “Secured Parties,” each as defined in the ABL Agreement or any Persons that are designated under the ABL Agreement as the “ABL Creditors” for purposes of the ABL Intercreditor Agreement.
“ABL Documents” means, collectively, the ABL Facility, the ABL Intercreditor Agreement and the indenture, credit agreement or other agreement governing other ABL Indebtedness and ABL Security Documents related to the foregoing.
“ABL Facility” means that credit agreement with respect to an asset-based revolving credit facility, to be dated on or around the Issue Date, among the Company, certain of its Subsidiaries, the ABL Facility Administrative Agent, the ABL Collateral Agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder), and including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified or refinanced from time to time, and (if designated by the Company) as replaced (whether or not upon termination, and whether with the original lenders or otherwise), amended, restated, modified or refinanced from time to time, including (if designated by the Company) by any agreement or indenture or commercial paper facility with banks or other institutional lenders or investors extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures increasing the amount loaned or issued thereunder expressly permitted by Section 4.09 or adding Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“ABL Facility Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as the administrative agent under the ABL Facility, or any successor representative acting in such capacity.
“ABL Indebtedness” means (a) Indebtedness (including letters of credit and reimbursement obligations with respect thereto) and other obligations Incurred by the ABL Loan Parties under or in respect of the ABL Facility and/or (b) Guarantees by any Subsidiary in respect of any of the obligations described in the foregoing clause (a).
“ABL Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the ABL Collateral Agent, the Superpriority Credit Facility Collateral Agent, the 2023 Credit Facility Collateral Agent, the 2025 Credit Facility Collateral Agent, the Notes Collateral Agent, the 2025 Notes Collateral Agents and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“ABL Loan Parties” means, collectively, the borrowers and guarantors from time to time party to the ABL Documents.
“ABL Non-Priority Collateral” means all Collateral that is not ABL Priority Collateral. “ABL Obligations” means (a) all principal of and interest (including, without limitation
any post-petition interest) and premium (if any) on all loans made pursuant to the ABL Agreement or any
ABL DIP Financing (as defined in the ABL Intercreditor Agreement) by the ABL Creditors, (b) all reimbursement obligations (if any) and interest thereon (including without limitation any post-petition interest) with respect to any letter of credit or similar instruments issued pursuant to the ABL Agreement,
(c) all Swap Obligations (as defined in the ABL Intercreditor Agreement), (d) all Banking Services Obligations (as defined in the ABL Intercreditor Agreement) and (e) all guarantee obligations, indemnities, fees, expenses (including, without limitation, all fees and disbursements of counsel to the ABL Representatives (as defined in the ABL Intercreditor Agreement) or any ABL Creditors) and other amounts payable from time to time pursuant to the ABL Documents, in each case whether or not allowed or allowable in an insolvency proceeding. To the extent any payment with respect to any ABL Obligation (whether by or on behalf of any ABL Loan Party, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Notes Secured Party (as defined in the ABL Agreement), receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Indenture and the rights and obligations of the ABL Secured Parties and the Notes Secured Parties (as defined in the ABL Agreement), be deemed to be reinstated and outstanding as if such payment had not occurred.
“ABL Priority Collateral” means, collectively the ABL Priority Domestic Collateral and the ABL Priority Foreign Collateral.
“ABL Priority Domestic Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which constitutes “ABL Priority Collateral” under the ABL Facility; provided, that any ABL Priority Domestic Collateral that is for any reason after the Issue Date no longer “Collateral” under the ABL Facility shall be deemed as of such date to be Non-ABL Domestic Released Collateral.
“ABL Priority Foreign Collateral” means that portion of the Collateral that is held by a Foreign Subsidiary of the Company and which constitutes “ABL Priority Collateral” under the ABL Facility; provided, that any ABL Priority Foreign Collateral that is for any reason after the Issue Date no longer “Collateral” under the ABL Facility shall be deemed as of such date to be Non-ABL Foreign Collateral.
“ABL Priority Secured Indebtedness” means (a) ABL Indebtedness secured pursuant to the ABL Security Documents by Liens on the ABL Priority Collateral, which Liens are senior in priority to the Liens on the ABL Priority Collateral securing the Non-ABL Secured Indebtedness pursuant to the terms of the ABL Intercreditor Agreement or other intercreditor agreement that is substantially similar to such intercreditor agreement (regardless of any priority level among such Non-ABL Secured Indebtedness).
“ABL Secured Parties” means the ABL Collateral Agent, the ABL Facility Administrative Agent, the ABL Creditors and any other holders of the ABL Obligations.
“ABL Security Documents” means all security agreements, pledge agreements, control agreements, collateral assignments, Mortgages, deeds of trust, security deeds, deeds to secure debt, hypothecs, collateral agency agreements, debentures or other instruments, pledges, grants or transfers for security or agreements related thereto executed and delivered by the Company, any or any Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon Collateral (including, without limitation, financing statements under the Uniform Commercial Code or the PPSA, as applicable) in favor of the ABL Collateral Agent, for the benefit of any of the holders of ABL Indebtedness, in each case, as amended, modified, restated, supplemented or replaced, in whole or in part, from time to time, in accordance with its terms and the applicable ABL Documents subject to the terms of the ABL Intercreditor Agreement, as applicable.
“Acquired Indebtedness” means, with respect to any specified Person, (1) Indebtedness of any Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary, (2) Indebtedness assumed in connection with the acquisition of assets from such Person, or (3) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person, in each case whether or not Incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Subsidiary and, with respect to clauses (2) and (3) of the preceding sentence, on the date of consummation of such acquisition of assets.
“Additional ABL Agreement” means any agreement evidencing or governing the Incurrence of additional Indebtedness that is permitted to be secured by the Collateral securing any ABL Indebtedness on a pari passu basis with other ABL Indebtedness and treated as an ABL Agreement pursuant to the ABL Agreement and any agreement approved for designation as such by each ABL Collateral Agent and each Non-ABL Representative.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under this Indenture, in an amount equal or less than the Allowed Follow-On Issuance Amount, in connection with the Follow-On Registered Exchange and in accordance with Section 2.01 and Section 4.09, whether or not they bear the same CUSIP number as the Initial Notes.
“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) when used with respect to any Person means possession, directly or indirectly, of the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“After-Acquired Property” means property (other than Excluded Property) that is intended to be Collateral acquired by the Company or a Guarantor (including property of a Person that
becomes a new Guarantor after the Issue Date) that is not automatically subject to a perfected security interest under the Collateral Documents.
“Allowed Follow-On Issuance Amount” means an amount equal to (a) (x) $400.0 million less (y) the aggregate principal amount of Notes issued on the Issue Date (disregarding any Notes issued on the Issue Date on account of accrued and unpaid interest to, but excluding, the Issue Date on the Company’s existing 2024 Notes that are validly tendered and accepted in the exchange offer described in the Offering Memorandum) plus, to the extent applicable, (b) any additional principal amounts required to be paid in kind to pay accrued and unpaid interest to, but excluding, the settlement date of the Follow-On Registered Exchange on the Company’s existing 2024 Notes that are validly tendered and accepted in the Follow-On Registered Exchange.
“Agent” means any Registrar or Paying Agent.
“Agreed Security Principles” has the meaning set forth on Appendix B.
“Applicable Premium” means, with respect to a Note on any date of redemption, the
greater of:
(1)1.0% of the principal amount of such Note, and
(2)the excess, if any, of (a) the present value as of such date of redemption of (i) the
redemption price of such Note on October 14, 2026 (such redemption price being set forth in Section 3.07(d)), plus (ii) all required remaining scheduled interest payments due on such Note through October 14, 2026 (excluding accrued but unpaid interest to the date of redemption), computed using a discount rate equal to the Treasury Rate as of such date of redemption plus 50 basis points, over (b) the then outstanding principal amount of such Note.
“Asset Disposition” means any direct or indirect sale, lease (other than an operating lease entered into in the ordinary course of business), transfer, issuance or other disposition, or a series of related sales, leases (other than operating leases entered into in the ordinary course of business), transfers, issuances or dispositions that are part of a common plan, of shares of Capital Stock of a Subsidiary (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Subsidiaries, including any disposition by means of a merger, amalgamation, consolidation or similar transaction.
Notwithstanding the preceding, the following items shall not be deemed to be Asset
Dispositions:
(1)dispositions of assets, including by means of a merger, amalgamation, consolidation or similar transaction, by (a) a Guarantor to the Company or by the Company or a Guarantor to a Guarantor or (b) a Guarantor or the Company to a Non-Guarantor Subsidiary, provided that all such dispositions under clause (b) of this paragraph (excluding dispositions which are Permitted Investments or permitted pursuant to Section 4.08) (i) in the aggregate do not exceed $25.0 million (with the Fair Market Value of each such disposition being measured at the time made and without giving effect to subsequent changes in value) and (ii) are for cash consideration only; (2)the sale or other disposition of cash or Cash Equivalents in the ordinary course of business or in connection with cash management activities;
(3)a disposition of inventory or equipment in the ordinary course of business;
(4)dispositions of obsolete, damaged, worn out or surplus assets, in each in the ordinary course of business;
(5)the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture; (6)an issuance of Capital Stock by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(7)for purposes of Section 4.16 only, the making of a Permitted Investment (other than a Permitted Investment to the extent such transaction results in the receipt of cash or Cash Equivalents by the Company or its Subsidiaries (but excluding any securities, notes or other obligations that are subsequently converted into cash)) or a disposition that is permitted pursuant to Section 4.08; (8)[reserved];
(9)[reserved];
(10)dispositions of assets in any single transaction or series of related transactions with an aggregate Fair Market Value equal to or less than $5.0 million, provided that in any fiscal year, the aggregate sum of dispositions under this clause (10) shall not exceed $15.0 million;
(11)the creation of a Permitted Lien and dispositions in connection with Permitted Liens;
(12)discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof and sales of accounts receivable in the ordinary course of business and at the request of the account debtor thereon to facilitate the processing and payment thereof, in each case exclusive of factoring or similar arrangements;
(13)the issuance by a Subsidiary of Disqualified Stock or Preferred Stock that is permitted by Section 4.09; (14)(i) the licensing or sublicensing of intellectual property or other general intangibles and licenses, leases or subleases of other property, in each case, in the ordinary course of business and (ii) the abandonment or allowance to lapse of intellectual property which, in the case of this clause (ii), in the good faith determination of the Company is not material to the Company and its Subsidiaries, taken as a whole;
(15)foreclosure on assets;
(16)dispositions resulting from (i) any taking, expropriation or condemnation of any property of the Company or any Subsidiary by any governmental authority or (ii) any casualty;
(17)[reserved];
(18)sales and exchanges of assets in connection with the concurrent purchase of assets useful in a Similar Business to the extent that (i) the assets received by the Company or its Subsidiaries are of equivalent or greater Fair Market Value than the assets transferred
and, (ii) if a Subsidiary transfers any such assets without receiving assets in exchange as set forth in clause (i), such Subsidiary must receive cash consideration equal to or greater than the Fair Market Value of the transferred assets;
(19)[reserved];
(20)any surrender or waiver of contract rights or the settlement, release or surrender of any contract, tort or other litigation claims;
(21)dispositions of machinery, equipment or other fixed assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 180 days, (ii) such assets are exchanged within 180 days for machinery, equipment or other fixed assets having a Fair Market Value equal to or greater than the assets being traded in or (iii) the proceeds of such disposition are applied to the purchase price of replacement assets within 180 days;
(22)the unwinding of any Hedging Obligations;
(23)dispositions of Common Stock of the Company held by any Subsidiary in connection with any acquisition made by the Company or any Subsidiary;
(24)dispositions in connection with the China JV Restructuring;
(25)sales and/or transfers of joint venture equity interests and assets pursuant to the terms of the China Joint Venture; and
(26)sales and/or transfers of joint venture equity interests and assets pursuant to the terms of the Wincor Joint Venture.
“Authorized Representative” means in the case of (i) the Superpriority Credit Facility or the holders of Obligations thereunder, the Superpriority Credit Facility Administrative Agent, (ii) the ABL Facility or the holders of Obligations thereunder, the ABL Facility Administrative Agent, (iii) the 2025 Credit Facility or the holders of Obligations thereunder, the 2025 Credit Facility Administrative Agent, (iv) the 2023 Credit Facility or the holders of Obligations thereunder, the 2023 Credit Facility Administrative Agent, (v) the 2025 U.S. Notes or the holders thereof, the 2025 U.S. Notes Trustee, (vi) the 2025 Euro Notes or the holders thereof, the 2025 Euro Notes Trustee, and (vii) of the Notes or the Holders thereof, the Trustee and (viii) in the case of any series of additional Secured Indebtedness or the holders thereof that become subject to any Intercreditor Agreement, the Authorized Representative named for such series in the applicable joinder agreement.
“Average Life” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing:
(1)the sum of the products obtained by multiplying (a) the amount of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock by (b) the number of years (calculated to the nearest one- twelfth) from the date of determination to the date of such payment; by
(2)the sum of the amounts of all such payments.
“Bankruptcy Laws” shall mean, as applicable, (a) the Bankruptcy Code and (b) and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act
(Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement involving a compromise of claims of any class of its creditors), the UK Insolvency Act 1986, the German Insolvency Code (Insolvenzordnung), the Italian Bankruptcy Law or Italian Crisis and Insolvency Code, the Dutch Bankruptcy Act (Faillissementswet), Book XX of the Belgian Economic Law Code (Wetboek Economisch Recht/Code de droit économique), the Spanish Insolvency Law, the Swedish Reorganisation Act (Sw. lag (2022:964) om företagsrekonstruktion), the Swedish Bankruptcy Act (Sw. Konkurslag (1987:672)), the Polish Insolvency Law dated 28 February 2003 (Prawo upadłościowe), the Polish Restructuring Law dated 15 May 2015 (Prawo restrukturyzacyjne), the Council of the European Union Regulation 2015/848 on insolvency proceedings, the provisions of Book VI (Livre Sixième) of the French Commercial Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, restructuring, reorganization, administration, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect (including any applicable corporations or companies legislation to the extent the relief sought under such legislation relates to or involves the compromise, settlement, adjustment, restructuring or arrangement of debt).
“Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations of 23 March 2019, as amended from time to time.
“Belgian Collateral Agreements” means the collateral agreements governed by Belgian law set forth on Appendix C hereof.
“Belgian Collateral Documents” means the Belgian Collateral Agreements and each security agreement or other instrument or document, as applicable, governed by Belgian law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Belgian Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Belgian Guarantor” means a Guarantor organized or incorporated under the laws of Belgium.
“beneficial ownership” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, and “beneficial owner” has a corresponding meaning.
“Bi-lateral LC/WC Agreement” means an agreement between the Company and/or any of its Subsidiaries and a financial institution providing for foreign and/or domestic revolving credit facilities and/or the issuance of letters of credit, bank guarantees and/or similar obligations, which agreement has been designated in writing as a Bi-lateral LC/WC Agreement pursuant to an Officer’s Certificate delivered to the Trustee setting forth the maximum principal amount available or permitted to be Incurred under such agreement. The Company may rescind such designation or decrease or increase the maximum principal amount available or permitted to be Incurred under any such agreement pursuant to an Officer’s Certificate delivered to the Trustee. Liens on the collateral in respect of any credit facility securing obligations in respect of any Bi-lateral LC/WC Agreements shall be required to be secured pursuant to clauses (34) and/or (35) of the definition of “Permitted Liens.”
“Board Candidates” means the two individuals named in the Officer’s Certificate that is to be delivered by the Company to the Trustee on or prior to January 15, 2023 (or such later date as may be permitted under the Transaction Support Agreement) designating such individuals as “Board Candidates” under this Indenture.
“Board Candidate Failure Event” means (i) either (or both) of the Board Candidates not being timely and/or otherwise properly nominated by the Company’s Board of Directors with respect to its next annual general meeting following the date hereof to serve as directors on the Company’s Board of Directors or (ii) either or both of such persons not being elected by the shareholders of the Company at such annual general meeting to serve as directors on the Company’s Board of Directors.
“Board of Directors” means:
(1)with respect to a corporation, the Board of Directors of the corporation or (other than for purposes of determining Change of Control) any duly authorized committee of the Board of Directors;
(2)with respect to a partnership, the Board of Directors of the general partner of the partnership; and
(3)with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or North Canton, Ohio are authorized or required by law to close.
“Canadian Collateral Agreement” means, collectively, the Canadian security agreement among the Note Parties party thereto and the Notes Collateral Agent, in form and substance reasonably satisfactory to the Notes Collateral Agent, and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Canadian law in connection with this Indenture and the Canadian Collateral and Guarantee Requirement to secure any of the Obligations.
“Canadian Collateral and Guarantee Requirement” means, at any time and solely with respect to each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Trustee and the Notes Collateral Agent shall have received from (i) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the applicable supplemental indenture hereto duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplemental indenture hereto duly executed and delivered on behalf of such Person, (ii) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Foreign Note Documents executed and
delivered after the Issue Date, documents and, to the extent reasonably requested by the Trustee or the Notes Collateral Agent;
(b)all outstanding Capital Stock of any Subsidiary of the Company (other than any Capital Stock constituting Excluded Property) owned by or on behalf of any Canadian Note Party shall have been pledged pursuant to the Canadian Collateral Agreement and the Notes Collateral Agent shall have received certificates or other instruments representing all such Capital Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Canadian Note Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Canadian Collateral Agreement and the Notes Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including PPSA financing statements, Control Agreements and intellectual property security agreements, required by the Canadian Collateral Agreement or Requirements of Law and reasonably requested by the Trustee, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Canadian Collateral Agreement and perfect such Liens to the extent required by, and with the priority required by, the Canadian Collateral Agreement and the other provisions of the term “Canadian Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Trustee in proper form for filing, registration or recording;
(e)the Notes Collateral Agent shall have received as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Notes Collateral Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Notes Collateral Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Notes Collateral Agent, insuring the Lien of each such Mortgage as a second-priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 4.10, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Trustee may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Notes Collateral Agent of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation,
survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer) and (vi) such legal
opinions as the Trustee or Notes Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Canadian Note Party on the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree), (ii) with respect to any Required Account established by a Canadian Note Party after the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Trustee shall reasonably agree), and
(iii) with respect to any Required Account acquired by a Canadian Note Party after the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Trustee shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Trustee. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account maintained by a Canadian Note Party so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement or (ii) the Lien thereon securing the obligations under the Superpriority Credit Facility, 2025 Credit Facility, 2025 Notes or 2023 Credit Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Canadian Note Parties, or the provision of Guarantees by any Canadian Subsidiary (i) if, and for so long as and to the extent that the Trustee and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other taxes)), outweighs the benefits to be obtained by the Holders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the PPSA or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral of the Canadian Note Parties shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the PPSA or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Canadian Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Canadian Collateral Agreement, (c) except with respect to any Required Accounts, in no event shall Control Agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of PPSA financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 other than the filing of PPSA financing statements and, other than the filing of PPSA financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of
less than $2,000,000, (f) except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. or Canadian jurisdiction or required by the laws of any non-U.S. or Canadian jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States or Canada (including any Capital Stock of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets, (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of PPSA financing statements), (h) no Note Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Property. The Trustee may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Issue Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Indenture or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Collateral Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the Notes, the 2025 Notes, Superpriority Credit Facility, 2025 Credit Facility, 2023 Credit Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Canadian Note Party” means any Note Party incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof.
“Canadian Subsidiary” means each Subsidiary incorporated, formed or organized, under the laws of Canada or a province or territory thereof.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible or exchangeable into such equity.
“Capitalized Lease Obligations” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“Cash Equivalents” means:
(1)U.S. dollars, Canadian dollars, Swiss Francs, Pounds Sterling, Japanese Yen, Euros or any national currency of any participating member state of the EMU or, in the case of a Foreign Subsidiary, such other local currencies held by it from time to time in the ordinary course of business;
(2)securities issued or directly and fully Guaranteed or insured by the U.S. government or any agency or instrumentality of the United States (provided that the full faith and credit of the United States is pledged in support thereof);
(3)marketable general obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof or issued by any foreign government or any political subdivision or any public instrumentality thereof, in each case having an Investment Grade Rating;
(4)certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances issued by any commercial bank having a combined capital and surplus in excess of $250.0 million, in the case of U.S. banks, and $100.0 million, in the case of non-U.S. banks;
(5)repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) and (4) entered into with any bank meeting the qualifications specified in clause (4) above;
(6)bonds with an Investment Grade Rating and Preferred Stock issued by Persons with an Investment Grade Rating, including municipal bonds, corporate bonds and treasury bonds;
(7)(i) commercial paper issued by any bank meeting the qualifications specified in clause (4) above or by the parent company of any such bank, (ii) commercial paper with a short- term commercial paper rating of at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s, or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments, and (iii) marketable short-term money market and similar funds having the equivalent of an Investment Grade Rating;
(8)interests in any money market fund substantially all of the assets of which are comprised of instruments of the type specified in clauses (1) through (7) above;
(9)other securities and financial instruments which offer a security comparable to the instruments specified in clauses (1) through (8) above; and
(10)in the case of any Foreign Subsidiary, investments of the type and maturity described in clauses (1) through (9) above of foreign obligors, which investments or obligors have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies.
“Cash Management Agreement” means any agreement providing cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services that is in effect on the Issue Date or thereafter and is by and among the Company or any of its Subsidiaries and a Cash Management Bank.
“Cash Management Bank” means the administrative agent and any lender under the ABL Facility or any Affiliate or branch thereof that is a party to a Cash Management Agreement with the Company or any of its Subsidiaries and, with respect to any Cash Management Agreement entered into prior to the Issue Date, any Person that was the administrative agent, a lender under the ABL Facility or any Affiliate thereof at the time it entered into a Cash Management Agreement with the Company or any of its Subsidiaries.
“Change of Control” means:
(1)any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent entities (or their successors by merger, amalgamation, consolidation or purchase of all or substantially all of their assets);
(2)the merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company or the merger or amalgamation of any Person with or into a Subsidiary of the Company, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Company, immediately prior to such transaction, hold securities of the surviving, continuing or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
(3)the first day on which a majority of the members of the full Board of Directors of the Company or any direct or indirect parent entity of the Company are not Continuing Directors;
(4)the sale, assignment, conveyance, transfer, lease or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company or any direct or indirect parent entity of the Company and its Subsidiaries, taken as a whole, to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act);
(5)the adoption by the shareholders of the Company or any direct or indirect parent entity of the Company of a plan or proposal for the liquidation or dissolution of the Company; or
(6)the occurrence of any event or circumstance that constitutes a “change of control” (as such term (or any reasonably synonymous term) is defined under any of the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2025 Notes Indentures or the 2024 Notes Indenture (or under any documents governing any Indebtedness that has refinanced any of the foregoing)).
“China Joint Venture” means the Company’s joint venture with Inspur Group, Inspur Financial Technology Service Co., Ltd. (including any successor entity thereto).
“China JV Restructuring” means a transaction or series of related transactions restructuring the ownership holdings of (i) Diebold Financial Equipment Company (“DFEC”), an entity formed under the laws of the People’s Republic of China and owned by Diebold Nixdorf Switzerland Holding Company Sarl, a limited liability company formed under the laws of Switzerland (“Swiss Holdco”) and IFIT, and (ii) Inspur Financial Information Technology Co., Ltd. (“IFIT”), an entity formed under the laws of the People’s Republic of China and as of the Issue Date owned by Swiss Holdco and a third-party joint venture partner (the “IFIT Partner”), pursuant to which Swiss Holdco will continue to hold ownership interests in IFIT directly and in DFEC indirectly and, for the avoidance of doubt, any Asset Dispositions, Investments and Restricted Payments made and/or received by DFEC, IFIT, Swiss Holdco and the IFIT Partner for the purpose of consummating such restructuring transactions; provided that no assets of the Company or any Subsidiary of the Company (other than those of DFEC and IFIT and
Capital Stock of such entities) shall be subject to the China JV Restructuring and no assets shall be transferred to the IFIT Partner in connection therewith except for Restricted Payments made on a ratable basis otherwise permitted by this Indenture (without reference to this definition).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means, collectively, all of the assets and property (including Capital Stock) and interests therein and proceeds thereof, whether now owned or hereafter acquired, other than Excluded Property, in or upon which a Lien is granted pursuant to the Collateral Documents as security for the Obligations under this Indenture, the Notes, the Note Guarantees and any related Obligations, but shall in all events with respect to Note Parties organized or incorporated outside the United States (or any state or territory thereof), other than the Canadian Note Parties, be limited by and subject in all respects to the Agreed Security Principles and exclude all Foreign Excluded Property.
“Collateral and Guarantee Requirements” means, at any time, collectively, the Domestic Collateral and Guarantee Requirement, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
“Collateral Documents” means, collectively, the Security Agreement, each Mortgage, the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents and the other security agreements, pledge agreements, deeds of hypothec, agency agreements, mortgages, deeds of trust, collateral assignments, collateral agency agreements, control agreements, debentures, charges and other instruments and documents executed and delivered by the Company or any Guarantor pursuant to this Indenture or any of the foregoing (including, without limitation, the financing statements under the Uniform Commercial Code of the relevant state or the PPSA of the relevant provinces or territories), as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is pledged, assigned, charged or granted to or on behalf of the Notes Collateral Agent for the ratable benefit of the Holders and the Trustee or perfected or notice of such pledge, assignment or grant is given.
“Commodity Agreement” means, with respect to any Person, any commodity future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is a party or beneficiary.
“Common Stock” means with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock, whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
“Company” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to Article 5.
“Consent Solicitation” means the consent solicitations in respect of certain consents and amendments sought with respect to the 2024 Notes and the 2024 Notes Indenture, conducted in conjunction with the offer of the Notes in exchange for any and all 2024 Notes.
“Consolidated Coverage Ratio” means as of any date of determination, with respect to any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for
which internal financial statements prepared on a consolidated basis in accordance with GAAP are available to (y) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:
(1)if the Company or any Subsidiary:
(a)has Incurred any Indebtedness since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period and the discharge of any other Indebtedness repaid, repurchased, redeemed, retired, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; or
(b)has repaid, repurchased, redeemed, retired, defeased or otherwise discharged any Indebtedness since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes a discharge of Indebtedness (in each case, other than Indebtedness Incurred under any revolving Debt Facility unless such Indebtedness has been permanently repaid and the related commitment terminated and not replaced), Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such discharge had occurred on the first day of such period;
(2)if since the beginning of such period, the Company or any Subsidiary will have made any Asset Disposition or disposed of or discontinued (as defined under GAAP) any company, division, operating unit, segment, business, group of related assets or line of business or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes such a transaction:
(a)the Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) directly attributable to the assets that are the subject of such disposition or discontinuation for such period or increased by an amount equal to the Consolidated EBITDA (if negative) directly attributable thereto for such period; and
(b)Consolidated Interest Expense for such period will be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of the Company or any Subsidiary repaid, repurchased, redeemed, retired, defeased or otherwise discharged (to the extent the related commitment is permanently reduced) with respect to the Company and its continuing Subsidiaries in connection with such transaction for such period (or, if the Capital Stock of any Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Indebtedness of such Subsidiary to the extent the Company and its continuing Subsidiaries are no longer liable for such Indebtedness after such sale);
(3)if since the beginning of such period the Company or any Subsidiary (by merger, amalgamation or otherwise) will have made an Investment in any Subsidiary (or any
Person that becomes a Subsidiary or is merged or amalgamated with or into the Company or a Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of a company, division, operating unit, segment, business, group of related assets or line of business, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and
(4)if since the beginning of such period any Person (that subsequently became a Subsidiary or was merged or amalgamated with or into the Company or any Subsidiary since the beginning of such period) will have Incurred any Indebtedness or discharged any Indebtedness or made any disposition or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (1), (2) or (3) above if made by the Company or a Subsidiary during such period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations (and, for the avoidance of doubt, all other calculations to be made pursuant to this definition) shall be made in good faith by a responsible financial or accounting officer of the Company. Without duplication of clauses (h) and (i) under section (1) of the definition of “Consolidated EBITDA,” any such calculation shall give effect to the Synergies, Costs of Synergies and other non-recurring costs, charges, accruals, reserves or expenses that have been incurred or realized or are reasonably anticipated to be incurred or realized in good faith subject, in any calculation of pro forma Consolidated EBITDA, to the applicable limitations on such Synergies, Costs of Synergies and other non-recurring costs, charges, accruals, reserves or expenses set forth in the definition of “Consolidated EBITDA.”
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of twelve months). If any Indebtedness that is being given pro forma effect bears an interest rate at the option of the Company, the interest rate shall be calculated by applying such optional rate chosen by the Company. In making any pro forma calculation, the amount of Indebtedness under any revolving Debt Facility outstanding on the date of determination (other than any Indebtedness Incurred under such facility in connection with the transaction giving rise to the need to calculate the Consolidated Coverage Ratio) will be deemed to be:
(i)the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding; or
(ii)if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such determination.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1)increased (without duplication) by the following items to the extent deducted in calculating such Consolidated Net Income:
(a)Consolidated Interest Expense; plus
(b)Consolidated Income Taxes; plus
(c)consolidated depreciation and amortization expense; plus
(d)goodwill, long-lived assets and other impairment charges; plus
(e)other non-cash charges, including any write-offs or write-downs (excluding any such non-cash charge to the extent it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense that was capitalized at the time of payment); plus
(f)(i) any fees, costs, expenses or charges related to any Equity Offering, Asset Disposition or other Investment permitted under this Indenture, recapitalization or Incurrence or amendments of Indebtedness permitted to be made under this Indenture (whether or not successful) and (ii) any fees, costs, expenses or charges Incurred by the Company or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or Net Cash Proceeds of an issuance of Capital Stock of the Company; plus
(g)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Asset Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); plus
(h)synergies and cost savings of the Company and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives (“Synergies”) and costs, charges, accruals, reserves or expenses of the Company and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Asset Disposition by the Company or its Subsidiaries outside the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring initiatives enacted after the date hereof (it being understood any such increases pursuant to this clause (h) related to an Asset Disposition shall only be available subject to the consummation of the Asset Disposition and not in contemplation thereof), in each case, that are set forth in an Officer’s Certificate and that are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Company in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Asset Disposition or the decision to implement such restructuring initiative (calculated
on a pro forma basis in a manner consistent with the definition of “Consolidated Coverage Ratio” and net of the amount of actual benefits realized during such period from such actions to the extent already included in Consolidated Net Income for such period); provided that the aggregate amount added back in reliance on this clause (h) in any four-fiscal quarter period shall not exceed 10.0% of Consolidated EBITDA for such four-fiscal quarter period (calculated before giving effect to any add-backs and adjustments in this clause (h) and in clause (i) below); plus
(i)non-recurring costs, charges, accruals, reserves or expenses attributable or related to the Company’s DN Now transformation program Incurred by the Company and its Subsidiaries that are set forth in an Officer’s Certificate and are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate); provided that (x) the aggregate amount added back in reliance on this clause (i) in the year ending December 31, 2020 shall not exceed
$80.0 million, (y) the aggregate amount added back in reliance on this clause (i) in the year ending December 31, 2021 shall not exceed $50.0 million and (z) no amount shall be added back in reliance on this clause (i) in any period after December 31, 2021; and
(2)decreased (without duplication) by non-cash items increasing such Consolidated Net Income (excluding any such items which represent the recognition of deferred revenue, the reversal of any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period, and any such items for which cash was received in a prior period that did not increase Consolidated EBITDA in any prior period) and if Consolidated Income Taxes is a benefit, by the amount of such benefit.
“Consolidated Income Taxes” means, with respect to any Person for any period, taxes imposed upon such Person or any of its consolidated Subsidiaries or other payments required to be made by such Person or any of its consolidated Subsidiaries to any governmental authority, which taxes or other payments are calculated by reference to the income or profits or capital of such Person or any of its consolidated Subsidiaries (to the extent such income or profits were included in computing Consolidated Net Income for such period), including, without limitation, state, provincial, territorial, franchise and similar taxes and foreign withholding taxes regardless of whether such taxes or payments are required to be remitted to any governmental authority.
“Consolidated Interest Expense” means, with respect to any Person for any period, the total interest expense of such Person and its consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, whether paid or accrued, plus, to the extent not included in such interest expense (without duplication):
(1)interest expense attributable to Capitalized Lease Obligations;
(2)amortization of debt discount (including the amortization of original issue discount resulting from the issuance of Indebtedness at less than par) and debt issuance costs; provided, however, that any amortization of bond premium will be credited to reduce Consolidated Interest Expense unless, pursuant to GAAP, such amortization of bond premium has otherwise reduced Consolidated Interest Expense;
(3)non-cash interest expense, but any non-cash interest income or expense attributable to the movement in the mark-to-market valuation of Hedging Obligations or other derivative
instruments pursuant to GAAP shall be excluded from the calculation of Consolidated Interest Expense;
(4)commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing;
(5)the interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries;
(6)the net costs associated with entering into Hedging Obligations (including amortization of fees) related to Indebtedness;
(7)interest expense of such Person and its Subsidiaries that was capitalized during such period; and
(8)the product of (a) all dividends paid or payable, in cash, Cash Equivalents or Indebtedness or accrued during such period on any series of Disqualified Stock or on Preferred Stock of Non-Guarantor Subsidiaries payable to a party other than the Company or a Wholly Owned Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state, provincial, territorial and local statutory tax rate of such Person, expressed as a decimal, in each case on a consolidated basis and in accordance with GAAP.
For purposes of the foregoing, total interest expense will be determined (i) after giving effect to any net payments made or received by the Company and its Subsidiaries with respect to Interest Rate Agreements and (ii) exclusive of amounts classified as other comprehensive income on the balance sheet of the Company. Notwithstanding anything to the contrary contained herein, subject to the proviso above, commissions, discounts, yield and other fees and charges Incurred in connection with any transaction pursuant to which the Company or its Subsidiaries may sell, convey or otherwise transfer or grant a security interest in any accounts receivable or related assets shall be included in Consolidated Interest Expense.
“Consolidated Net Income” means, for any period, the net income (loss) of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided, however, that there will not be included in such Consolidated Net Income on an after-tax basis:
(1)any net income (loss) of any Person if such Person is not a Subsidiary or that is accounted for by the equity method of accounting, except that:
(a)subject to the limitations contained in clauses (3) through (9) below, the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Subsidiary, to the limitations contained in clause (2) below); and
(b)the Company’s equity in a net loss of any such Person for such period will be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Company or a Subsidiary;
(2)any net income (but not loss) of any Subsidiary (other than a Guarantor) if such Subsidiary is subject to prior government approval or other restrictions due to the operation of its charter or any agreement, instrument, judgment, decree, order statute, rule or government regulation (which have not been obtained or waived), directly or indirectly, on the payment of dividends or the making of distributions by such Subsidiary, directly or indirectly, to the Company, except that:
(a)subject to the limitations contained in clauses (3) through (9) below, the Company’s equity in the net income of any such Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Subsidiary during such period to the Company or another Subsidiary as a dividend (subject, in the case of a dividend to another Subsidiary, to the limitation contained in this clause); and
(b)the Company’s equity in a net loss of any such Subsidiary for such period will be included in determining such Consolidated Net Income;
(3)any gain or loss (excluding all fees and expenses relating thereto) realized upon sales or other dispositions of any assets of the Company or such Subsidiary outside the ordinary course of business;
(4)any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity-based awards, including any such charge or expense Incurred in connection with any merger, amalgamation, consolidation or acquisition;
(5)any income or loss from the early extinguishment of Indebtedness or early termination of Hedging Obligations or other derivative instruments;
(6)any extraordinary gain or loss;
(7)any net after-tax effect of gains or losses attributable to disposed or discontinued operations;
(8)any net income or loss included in the consolidated statement of operations with respect to noncontrolling interests; and
(9)the cumulative effect of a change in accounting principles.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company or any direct or indirect parent company of the Company who: (1) was a member of such Board of Directors on the Issue Date; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.
“Control Agreement” means an agreement, in form and substance reasonably satisfactory to the Trustee (and, in the case of protections for the benefit of the Notes Collateral Agent or obligations of the Notes Collateral Agent, the Notes Collateral Agent), which provides for the Notes Collateral Agent to have control (including “control” as defined in Section 9-104 of the UCC or Section 8-106 of the UCC, as applicable) of “deposit accounts” (as defined in the UCC or the Canadian Collateral Agreement, as applicable) or “securities accounts” (as defined in the UCC or PPSA), as applicable.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Holders and the Company.
“Covered Guarantors” means Diebold Global Finance Corporation, Diebold Holding Company, LLC, Diebold SST Holding Company, LLC, Diebold Nixdorf Technology Finance, LLC, Griffin Technology Incorporated, Diebold Self Service Systems, Diebold Nixdorf Canada, Limited, Diebold Canada Holding Company Inc., Diebold Nixdorf BV, Diebold Nixdorf Global Holding, B.V., the Dutch Issuer Guarantor, Diebold Nixdorf B.V., Diebold Nixdorf Software Partner B.V., Diebold Nixdorf Software C.V., Diebold Nixdorf Global Solutions B.V., Diebold Nixdorf Holding Germany GmbH, Wincor Nixdorf International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, Diebold Nixdorf Global Logistics GmbH, Wincor Nixdorf Facility GmbH, Diebold Nixdorf Real Estate GmbH & CoKG, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Finance Germany GmbH, Diebold Nixdorf S.r.l., Diebold Nixdorf sp. z o.o., Diebold Nixdorf BPO sp. z o.o., Diebold Nixdorf S.L., Diebold Nixdorf AB and Diebold Nixdorf (UK) Limited.
“Currency Agreement” means, with respect to any Person, any foreign exchange future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is a party or a beneficiary.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto, and the Units Trustee, as custodian with respect to the Attached Notes in definitive form, or any successor entity thereto.
“Debt Facility” means one or more debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee of such Debt Facility).
“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Definitive Note” means a certificated Initial Note or Additional Note (bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law) that does not include the Global Notes Legend.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Diebold Germany” means Diebold Nixdorf Holding Germany GmbH.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
(1)matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(2)is convertible into or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Company) (it being understood that upon such conversion or exchange it shall be an Incurrence of such Indebtedness or Disqualified Stock)); or
(3)is redeemable at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the date 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further, that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company or its Subsidiaries to repurchase such Capital Stock upon the occurrence of a Change of Control or Asset Disposition (each defined in a substantially identical manner to the corresponding definitions in this Indenture) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) provide that the Company or its Subsidiaries, as applicable, are not required to repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) pursuant to such provision prior to compliance by the Company with Section 4.15 and Section 4.16 and such repurchase or redemption complies with Section 4.08. Notwithstanding the foregoing, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, Officers, employees, members of management, managers or consultants or by any such plan to such directors, Officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Company or any Subsidiary, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, Officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Company (or any Subsidiary) shall be considered Disqualified Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, shareholder agreement or similar agreement that may be in effect from time to time.
“Domestic Collateral and Guarantee Requirement” means, at any time and solely with respect to each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Trustee and the Notes Collateral Agent shall have received from (i) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the applicable supplemental indenture hereto duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplemental indenture hereto duly executed and delivered on behalf of such Person, (ii) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Security Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each
Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Note Documents executed and delivered after the Issue Date, documents and, to the extent reasonably requested by the Trustee or the Notes Collateral Agent;
(b)all outstanding Capital Stock of the Company and the Subsidiaries (other than any Capital Stock constituting Excluded Property) owned by or on behalf of any Domestic Note Party shall have been pledged pursuant to the Security Agreement and the Notes Collateral Agent shall have received certificates or other instruments representing all such Capital Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Domestic Note Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Security Agreement and the Notes Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, Control Agreements and intellectual property security agreements, required by the Collateral Documents or Requirements of Law and reasonably requested by the Trustee, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Domestic Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Trustee in proper form for filing, registration or recording;
(e)the Notes Collateral Agent shall have received as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Notes Collateral Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Notes Collateral Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Notes Collateral Agent, insuring the Lien of each such Mortgage as a second-priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 4.10, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Notes Collateral Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Notes Collateral Agent of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of
the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vi) completed “Life-of-Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Note Party relating thereto), (vii) if any Mortgaged Property is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors and the other Flood Insurance Regulations, and (viii) such legal opinions as the Trustee or the Notes Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Domestic Note Party on the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree), (ii) with respect to any Required Account established by a Domestic Note Party after the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Trustee shall reasonably agree), and
(iii) with respect to any Required Account acquired by a Domestic Note Party after the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Trustee shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Trustee. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement or (ii) the Lien thereon securing the obligations under the Superpriority Credit Facility, 2025 Credit Facility, 2025 Notes or 2023 Credit Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Note Parties, or the provision of Guarantees by any Subsidiary (i) if, and for so long as and to the extent that the Trustee and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other taxes)), outweighs the benefits to be obtained by the Holders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti- assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Domestic Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Collateral Documents, (c) except with
respect to any Required Accounts, in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 and, other than the filing of UCC financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Capital Stock of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) no Note Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Property. The Trustee may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Issue Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Indenture or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the Notes, the 2025 Notes, Superpriority Credit Facility, 2025 Credit Facility, 2023 Credit Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Domestic Note Party” means a Note Party that is not a Foreign Subsidiary. “Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.
“Domination Agreement” means a domination agreement (Beherrschungvertrag) within the meaning of Sec 291(1) of the German Stock Corporation Act (Aktiengesetz) among the Company (or any of its direct or indirect Wholly Owned Subsidiaries), Wincor Nixdorf and the other parties thereto.
“DTC” means The Depository Trust Company.
“Dutch Collateral Agreements” means the collateral agreements governed by Dutch law set forth on Appendix C hereof, each dated as of the Issue Date between each Note Party from time to time party thereto and the Notes Collateral Agent.
“Dutch Collateral Documents” means each of the Dutch Collateral Agreements, and each other security agreement, pledge, mortgage or other instrument or document, as applicable, governed by Dutch law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Dutch Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Dutch Guarantor” means the Dutch Issuer Guarantor and any other Guarantor organized or incorporated in the Netherlands.
“Dutch Issuer Guarantor” means Diebold Nixdorf Dutch Holding B.V.
“EMU” means the European Economic and Monetary Union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
“EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states of the European Union.
“English Collateral Agreements” means the collateral agreements governed by English law set forth on Appendix C hereof.
“English Collateral Documents” means (a) the English Collateral Agreements and (b) each other security agreement, charge, assignment by way of security, lien, pledge, debenture, hypothec, mortgage or other instrument or document, as applicable, governed by English law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each English Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Equity Offering” means an offering for cash by the Company of its Common Stock, or options, warrants or rights with respect to its Common Stock, other than (1) public offerings with respect to the Company’s Common Stock, or options, warrants or rights, registered on Form S-4 or S-8, (2) an issuance to any Subsidiary or (3) any offering of Common Stock issued in connection with a transaction that constitutes a Change of Control.
“Euro” means the single currency unit of the member states of the European Union that have the euro as their lawful currency in accordance with the EMU Legislation.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Excluded Property” means:
(1)any fee-owned real property located outside the United States (i) that is excluded to the extent that security interests over such assets would result in material adverse tax treatment or (ii) that is not Material Real Property;
(2)any fee-owned real property located in the United States that is not Material Real
Property;
(3)leasehold interests (it being understood that there shall be no requirement to
obtain leasehold mortgages/deeds of trusts, landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents);
(4)those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti- assignment provisions of the Uniform Commercial Code, the PPSA or other applicable law), or to the extent that such security interests would result in material adverse tax consequences to the Company and its Subsidiaries, taken as a whole, as reasonably determined in good faith by the Company;
(5)those assets as to which the Superpriority Credit Facility Administrative Agent (acting at the direction of the Required Superpriority Lenders) and the Company reasonably determine that the costs of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the holders of Priority Secured Indebtedness under the Superpriority Credit Facility of the security to be afforded thereby;
(6)any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto;
(7)to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Superpriority Credit Facility Administrative Agent (acting at the direction of the Required Superpriority Lenders), equity interests in any person other than Wholly Owned Subsidiaries;
(8)margin stock;
(9)letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that the Company and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below $2,000,000 (except to the extent perfection can be achieved by the filing of a Uniform Commercial Code financing statement or PPSA financing statement in the state of the Company or such Guarantor’s jurisdiction of organization or location of its chief executive office, as applicable);
(10)any governmental licenses or state, provincial, territorial or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and the PPSA, as applicable, and excluding the proceeds and receivables thereof);
(11)any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Company or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and the PPSA, as applicable, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or the PPSA notwithstanding such prohibition, but in each case subject to the terms of the Collateral and Guarantee Requirements (other than to the extent no additional action needs to be taken with respect to any such assets to create or perfect a security interest in any such assets);
(12)the Specified Intercompany Claims; and
(13)any property excluded pursuant to the Agreed Security Principles;
provided, however, that notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, any asset (other than the Paderborn Property) that does not constitute “Excluded Property” or “Excluded Assets”, as applicable under and as defined in the 2025 Notes Indentures, Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility
and/or the ABL Facility shall not constitute “Excluded Property” for purposes of this Indenture and the other Note Documents.
“Excluded Subsidiary” means any (i) Foreign Subsidiary (other than a Specified Foreign Subsidiary), (ii) Domestic Subsidiary of a Foreign Subsidiary (other than a Specified Foreign Subsidiary),
(iii) Domestic Subsidiary substantially all of the assets of which are Capital Stock or Indebtedness of Excluded Subsidiaries under clause (i) of this definition, (iv) other Subsidiary excused from becoming a Note Party pursuant to clause (a) of the penultimate paragraph of the definition of the term “Domestic Collateral and Guarantee Requirement” or of the term “Canadian Collateral and Guarantee Requirement” or the terms of the Agreed Security Principles, (v) any non-Wholly Owned Subsidiary to the extent the provision of a Guarantee or granting of a Lien thereby is restricted or prohibited pursuant to applicable local law or contractual requirements and (vi) Immaterial Subsidiaries.
“Fair Market Value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Company in good faith (including as to the value of all non- cash assets and liabilities).
“First Lien Pari Passu Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Collateral Agent, Superpriority Credit Facility Administrative Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, the 2023 Credit Facility Administrative Agent, the 2023 Credit Facility Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Follow-On Registered Exchange” means an offer to exchange, by way of a Form S-4 that is filed by the Company (and any subsequent amendments) and declared effective by the SEC, at or below par any Stub Obligations that are 2024 Notes for Additional Notes.
“Foreign Collateral” means, collectively, the Non-ABL Foreign Collateral and the ABL Priority Foreign Collateral.
“Foreign Excluded Property” means any asset or undertaking not required to be charged or secured or not subject to any applicable Collateral Document pursuant to and in accordance with the terms of the Canadian Collateral and Guarantee Requirement and Agreed Security Principles.
“Foreign Intellectual Property” means any right, title or interest in or to any intellectual property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.
“Foreign Note Documents” means the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents, any supplemental indenture hereto relating to the addition of Foreign Note Parties and any other Note Document which is not governed by the laws of the United States of America or any state or territory thereof.
“Foreign Note Parties” means each Note Party organized under the laws of a jurisdiction outside of the United States.
“Foreign Subsidiary” means any Subsidiary that is not organized under the laws of the United States or any state thereof or the District of Columbia.
“French Collateral Agreements” means the collateral agreements governed by French law set forth on Appendix C hereof.
“French Collateral Documents” means the French Collateral Agreements and each security agreement, pledge, mortgage, any type of security (sûreté réelle), transfer or assignment by way of security and fiducie-sûreté or other instrument or document, as applicable, governed by French law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each French Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“French Commercial Code” means the French Code de commerce. “French Guarantor” means any Guarantor incorporated in France.
“GAAP” means generally accepted accounting principles in the United States as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. Unless otherwise specified, all ratios and computations, contained in this Indenture will be computed in conformity with GAAP, except that (1) in the event the Company is acquired in a transaction that is accounted for using purchase accounting, the effects of the application of purchase accounting shall be disregarded in the calculation of such ratios and other computations contained in this Indenture and (2) all obligations of the Company and its Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP prior to January 1, 2019 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Indenture regardless of any change in GAAP on or after January 1, 2019 (or any change in the implementation in GAAP for future periods that are contemplated as of such date) that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation or otherwise as Indebtedness.
“German Collateral Agreements” means the collateral agreements governed by German law set forth on Appendix C hereof.
“German Collateral Documents” means each of the German Collateral Agreements, and each other security agreement or other instrument or document, as applicable, governed by German law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each German Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“German Guarantor” means any Guarantor organized or incorporated in Germany. “Government Securities” means securities that are (1) direct obligations of the United
States for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest
on any such Government Securities held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.
“Guarantee” means (1) any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and (2) any obligation, direct or indirect, contingent or otherwise, of such Person:
(a)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or
(b)entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business.
“Guarantor” means each Subsidiary in existence on the Issue Date that provides a Note Guarantee on the Issue Date (and any other Subsidiary that provides a Note Guarantee after the Issue Date); provided that upon release or discharge of such Subsidiary from its Note Guarantee in accordance with this Indenture, such Subsidiary ceases to be a Guarantor.
“Guarantor Release Protection Provisions” mean (a) each of the provisions under
“Guarantor Subordinated Obligation” means, with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Guarantor under its Note Guarantee.
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Agreement.
“Holder” means a Person in whose name a Note is registered on the Registrar’s books. “Immaterial Subsidiary” means, as of any date of determination, any Subsidiary that,
together with its Subsidiaries on a consolidated basis, accounts for not more than (1) 5.0% of the total
assets of the Company and its Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or (2) 5.0% of the total revenues (after intercompany eliminations) of the Company and its Subsidiaries for the period of the most recent four consecutive fiscal quarters ending on such balance sheet date; provided that the aggregate total assets or revenues for all Immaterial Subsidiaries shall not at any time exceed 10.0% of the total assets or revenues (after intercompany eliminations) of the Company and its Subsidiaries; provided further that, irrespective of the foregoing, a Subsidiary shall not be considered to be an Immaterial Subsidiary if it is a borrower or Guarantees any Priority Secured Indebtedness or Pari Passu Secured Indebtedness or Guarantees any other Indebtedness for borrowed money of the Company or any Guarantor.
“Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary; and the terms “Incurred”, “Incurring” and “Incurrence” have meanings correlative to the foregoing.
“Indebtedness” means, with respect to any Person on any date of determination (without
duplication):
(1)the principal of and premium (if any) in respect of indebtedness of such Person
for borrowed money;
(2)the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)all reimbursement obligations of such Person in respect of letters of credit (other than letters of credit that are secured by cash or Cash Equivalents), bankers’ acceptances or other similar instruments (excluding reimbursement obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade payables, unless such obligation remains unsatisfied for more than five Business Days);
(4)the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (including earn-out obligations), which purchase price is due more than three months after the date of placing such property in service or taking delivery and title thereto, except
(a) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business, and (b) any earn-out obligation until the amount of such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP;
(5)Capitalized Lease Obligations of such Person;
(6)the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Non-Guarantor Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness of such other Persons;
(8)the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person (whether or not such items would appear on the balance sheet of such Person in accordance with GAAP); and
(9)to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Obligation that would be payable by such Person at such time).
Notwithstanding the foregoing, money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to pre-fund the payment of interest on such Indebtedness shall not be deemed to be “Indebtedness”; provided that such money is held to secure the payment of such interest.
Notwithstanding the foregoing, the amount of any Indebtedness outstanding as of any date shall (i) be the accreted value thereof in the case of any Indebtedness issued with original issue discount or the aggregate principal amount outstanding in the case of Indebtedness issued with interest payable in kind and (ii) include any interest (or in the case of Preferred Stock, dividends) thereon that is more than 30 days past due. Except to the extent provided in the preceding sentence, the amount of any Indebtedness that is convertible into or exchangeable for Capital Stock of the Company outstanding as of any date shall be deemed to be equal to the principal and premium, if any, in respect of such Indebtedness, notwithstanding the provisions of GAAP (including Accounting Standards Codification Topic 470-20, Debt-Debt with Conversion and Other Options).
For purposes of clause (6) above, the “maximum mandatory redemption or repurchase price” of any Disqualified Stock or Preferred Stock, as applicable, that does not have a fixed redemption or repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock, as applicable, as if such Disqualified Stock or Preferred Stock, as applicable, were redeemed or repurchased on any date on which an amount of Indebtedness outstanding shall be required to be determined pursuant to this Indenture.
“Indenture” means this Indenture, as amended or supplemented from time to time. “Independent Financial Advisor” means an accounting, appraisal, investment banking
firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
“Initial Notes” has the meaning set forth in the recitals hereto.
“Intercreditor Agreements” means, collectively, the ABL Intercreditor Agreement, the First Lien Pari Passu Intercreditor Agreement, the Junior Lien Pari Passu Intercreditor Agreement, the Non-Released Multi Lien Intercreditor Agreement and the Multi Lien Intercreditor Agreement.
“Interest Period” means, with respect to any Note, the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next Interest Payment Date, with the exception that the first Interest Period with respect to any Note shall commence on and include the Issue Date of the Notes and end on and exclude the first Interest Payment Date to occur after the Issue Date (the Interest Payment Date for any Interest Period shall be the interest payment date occurring on the date immediately following the last day of such Interest Period).
“Interest Payment Date” means January 15 and July 15 of each year commencing with July 15, 2023, to the Stated Maturity of the Notes.
“Interest Rate Agreement” means, with respect to any Person, any interest rate future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is party or a beneficiary.
“Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (including by way of Guarantee or similar arrangement, but excluding (i) accounts receivable and other extensions of trade credit and/or accrued expenses, in each case arising in the ordinary course of business and payable in accordance with customary practices and (ii) any debt or extension of credit
represented by a bank deposit (other than a time deposit)) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided that none of the following will be deemed to be an Investment:
(1)Hedging Obligations entered into in the ordinary course of business and in compliance with this Indenture;
(2)endorsements of negotiable instruments and documents in the ordinary course of
business;
(3)an acquisition of assets, Capital Stock or other securities by the Company or a
Subsidiary for consideration to the extent such consideration consists of Common Stock of the Company;
(4)the acquisition of property and other assets from suppliers and other vendors in the ordinary course of business; and
(5)prepaid expenses and workers’ compensation, utility, lease and similar deposits in the ordinary course of business.
(1)any property transferred to or from a Subsidiary will be valued at its Fair Market Value at the time of such transfer; and
(2)if the Company or any Subsidiary sells or otherwise disposes of any Voting Stock of any Subsidiary such that, after giving effect to any such sale or disposition, such entity is no longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Capital Stock of such Subsidiary not sold or disposed of.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any other equivalent rating by any Rating Agency, in each case, with a stable or better outlook.
“Issue Date” means December 29, 2022.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, integrated and supplemented from time to time.
“Italian Civil Code” means the Italian civil code (“codice civile”), enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Collateral Agreements” means the collateral agreements governed by Italian law set forth on Appendix C hereof.
“Italian Collateral Documents” means the Italian Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Italian law in connection with this Indenture and the Agreed Security Principles to secure any of
the Obligations; provided that each Italian Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Italian Guarantor” shall mean a Guarantor organized or incorporated in Italy. “Junior Lien” means a Lien, junior to the Liens on the Collateral securing Pari Passu
Secured Indebtedness pursuant to the Junior Lien Pari Passu Intercreditor Agreement, granted by the
Company or any Guarantor to secure Junior Lien Obligations. Liens on the Collateral securing ABL Indebtedness shall be deemed not to be Junior Liens.
“Junior Lien Documents” means, collectively, any indenture, note, security document and each of the other agreements, documents and instruments providing for or evidencing any Junior Lien Obligations, and any other document or instrument executed or delivered at any time in connection with any Junior Lien Obligations, to the extent such are effective at the relevant time, in each case as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Junior Lien Indebtedness.
“Junior Lien Indebtedness” means any Indebtedness of the Company or any Guarantor that is secured by a Junior Lien; provided that, in the case of any Indebtedness referred to in this definition:
(1)such Indebtedness does not mature and does not have any mandatory or scheduled payments or sinking fund obligations prior to the maturity date of the Notes (except as a result of customary change of control or asset sale repurchase offer provisions; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company or such Guarantor has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer);
(2)on or before the date on which the first such Indebtedness is Incurred by the Company or any Guarantor, the Company shall deliver to each Authorized Representative complete copies of each applicable Junior Lien Document (which shall provide that each secured party with respect to such Indebtedness shall be subject to and bound by the Junior Lien Pari Passu Intercreditor Agreement), along with an Officer’s Certificate certifying as to such Junior Lien Documents and identifying the obligations constituting Junior Lien Obligations;
(3)on or before the date on which any such Indebtedness is Incurred by the Company or any Guarantor, such Indebtedness is designated by the Company, in an Officer’s Certificate delivered to the Junior Lien Representative and each Authorized Representative, as “Junior Lien Indebtedness” under this Indenture;
(4)a Junior Lien Representative is designated with respect to such Indebtedness and executes and delivers the Junior Lien Pari Passu Intercreditor Agreement (including, as applicable, a joinder thereto) on behalf of itself and all holders of such Indebtedness; and
(5)all other requirements set forth in the Junior Lien Pari Passu Intercreditor Agreement as to the confirmation, grant or perfection of the Liens of the holders of Junior Lien Indebtedness to secure such Indebtedness or Obligations in respect thereof are satisfied.
“Junior Lien Obligations” means Junior Lien Indebtedness and all other Obligations in respect thereof.
“Junior Lien Pari Passu Intercreditor Agreement” means an intercreditor agreement
which subordinates the Lien on the Collateral of the holders of the Junior Lien Indebtedness to the Lien on the Collateral of each of the holders of Pari Passu Secured Indebtedness and the terms of which are consistent with market terms (in the view of the Administrative Agent (as defined therein)) governing security arrangements for the subordination and sharing of Liens or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.
“Junior Lien Representative” means in the case of any series of Junior Lien Indebtedness, the trustee, agent or representative of the holders of such series of Junior Lien Indebtedness who is appointed as a representative of the Junior Lien Indebtedness (for purposes related to the administration of security interests) pursuant to the applicable Junior Lien Document governing such series of Junior Lien Indebtedness, together with its successors and assigns in such capacity.
“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code or the PPSA (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Loan” means any loans made by the lenders to Diebold Germany under the Superpriority Credit Facility.
“Loan Party” means Diebold Germany or any Guarantor that is also a guarantor under the Superpriority Credit Facility.
“Material Real Property” means, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned in fee by the Company or any Guarantor having a Fair Market Value at the time in excess of $10.0 million.
“Moody’s” means Moody’s Investors Services, Inc. or any successor to its rating agency
business.
“Mortgaged Property” means any real property and the improvements thereon owned in
fee by a Note Party with respect to which a Mortgage is granted pursuant to Section 11.06.
“Mortgages” means the mortgages, land charges, debentures, deeds of hypothec, deeds of trust, deeds to secure Indebtedness or other similar documents in legally sufficient form to secure Liens on the Premises, as well as the other Collateral secured by and described in the mortgages, land charges, debentures, deeds of hypothec, deeds of trust, deeds to secure Indebtedness or other similar documents.
“Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Administrative Agent, the Superpriority Credit Facility Collateral Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the Trustee and the Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Net Assets” for the purpose of Section 10.02(a) (Limitation on Guarantor Liability relating to any German Guarantor) means a German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) assets pursuant to Section 266 sub-section (2) A, B, C, D and E of the German Commercial Code (Handelsgesetzbuch) less the aggregate of its liabilities pursuant to Section 266 sub-section (3) B, C, D and E of the German Commercial Code, taking into consideration the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the respective German Guarantor in the preparation of its financial statements.
“Net Assets” for the purpose of Section 10.02(f) (Limitation on Guarantor Liability relating to a Belgian Guarantor) means the net assets (netto actief / actif net) of the Belgian Guarantor as defined in article 5:142 third paragraph, article 6:115 third paragraph or article 7:212 second paragraph (as applicable) of the Belgian Companies and Associations Code (as determined in accordance with the Belgian Companies and Associations Code and Belgian GAAP, a certificate of such amount from the statutory auditor of the Belgian Guarantor (or, if no statutory auditor is appointed or the statutory auditor refuses to issue such certificate, from an accountant appointed upon the Notes Collateral Agent’s request by the “Instituut van de Bedrijfsrevisoren/Institut des Réviseurs d’Entreprises”) shall be conclusive, save in the case of manifest error).
“Net Available Cash” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities or other assets received as consideration, but only as and when received (including after release from any required escrow), but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses Incurred, and all federal, state, provincial, territorial, foreign and local taxes required to be paid or reasonably expected to be paid or accrued as a liability under GAAP (after taking into account any tax credits or deductions that are available or reasonably expected to be available and any tax sharing agreements), as a consequence of such Asset Disposition;
(2)all payments made on any Indebtedness (a) that is secured by any assets (excluding any Collateral), to the extent of the value of such assets being sold subject to such Asset Disposition and only to the extent such assets are held and sold by Non-Guarantor Subsidiaries, or (b) made by Guarantors to the extent required by (i) the terms of any applicable Priority Secured Indebtedness, (ii) any Non-Guarantor Subsidiary Indebtedness and/or (iii) applicable law;
(3)all distributions and other payments required to be made to noncontrolling interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition;
(4)the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Subsidiary after such Asset Disposition;
(5)payments of unassumed liabilities (not constituting Indebtedness) relating to the assets subject to such Asset Disposition at the time of, or within 30 days after, such Asset Disposition; and
(6)with respect to any Asset Disposition involving a disposition of assets of a Foreign Subsidiary and solely to the extent the proceeds have not been applied to reduce Indebtedness, or
make capital or other permitted expenditures or investments in accordance with Section 4.16, the Net Available Cash attributable to such assets of such Foreign Subsidiary to the extent that the repatriation of such Net Available Cash to the Company or any of its Domestic Subsidiaries (i) is prohibited, restricted or delayed by applicable laws, rules or regulations or (ii) could reasonably be expected to result in adverse tax consequences to the Company and its Subsidiaries; provided that the Company will use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any costs to comply with Section 4.16.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credits or deductions and any tax sharing arrangements).
“Non-ABL Agreement” means the collective reference to (a) this Indenture and the 2025 Notes Indentures (each, a “Notes Indenture”), (b) the 2023 Credit Facility, the 2025 Credit Facility and the Superpriority Credit Facility (each, a “Term Credit Facility”), (c) any Additional Term Debt Agreement (as defined in the ABL Intercreditor Agreement) and (d) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been Incurred to extend, replace, refinance or refund in whole or in part the Indebtedness and other obligations outstanding under any Notes Indenture, any Term Credit Facility, any Additional Notes Agreement or any other agreement or instrument referred to in this clause (d) unless such agreement or instrument expressly provides that it is not intended to be and is not a Non-ABL Agreement hereunder. Any reference to the Non-ABL Agreement hereunder shall be deemed a reference to any Non-ABL Agreement then extant.
“Non-ABL Domestic Non-Released Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which (i) constitutes “Collateral” under the 2023 Credit Facility (as in existence on the Issue Date) but (ii) does not constitute “ABL Priority Collateral” under the ABL Facility; provided, that any Non-ABL Domestic Non-Released Collateral that is for any reason after the Issue Date no longer “Collateral” under the 2023 Credit Facility shall be deemed as of such date to be Non-ABL Domestic Released Collateral.
“Non-ABL Domestic Released Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which does not constitute (i) “ABL Priority Collateral” under the ABL Facility nor (ii) “Collateral” under the 2023 Credit Facility (as in existence on the Issue Date).
“Non-ABL Foreign Collateral” means that portion of the Collateral that is held by a Foreign Subsidiary of the Company and which does not constitute “ABL Priority Collateral” under the ABL Facility.
“Non-ABL Priority Collateral” means that portion of the Collateral that is held by the Company or a Guarantor and which does not constitute “ABL Priority Collateral” under the ABL Facility.
“Non-ABL Representative” means each of the Superpriority Credit Facility Collateral Agent, the 2023 Credit Facility Collateral Agent, the 2025 Credit Facility Collateral Agent, the Notes Collateral Agents, and the 2025 Notes Collateral Agents.
“Non-ABL Secured Indebtedness” means all Obligations other than any ABL Indebtedness that are secured by a Lien on any part of the Collateral.
“Non-Borrower Subsidiary” means any Subsidiary that is not a borrower under any of the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility and the 2023 Credit Facility.
“Non-Guarantor Subsidiary” means any Subsidiary that is not a Guarantor.
“Non-Released Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Collateral Agent, the Superpriority Credit Facility Administrative Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, the 2023 Credit Facility Administrative Agent, the 2023 Credit Facility Collateral Agent, the Trustee and the Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented, or replaced, in whole or in part, from time to time.
“Note Documents” means this Indenture, the Notes, the Collateral Documents and the Intercreditor Agreements (including in each case, any amendments thereto).
“Note Guarantee” means, individually, any Guarantee of payment of the Notes and the Company’s other Obligations under this Indenture by a Guarantor pursuant to the terms of this Indenture and any supplemental indenture thereto, and, collectively, all such Guarantees.
“Note Party” means the Company or any Guarantor.
“Notes” means the Initial Notes and more particularly means any Note authenticated and delivered under this Indenture. For all purposes of this Indenture, the term “Notes” shall also include any Additional Notes that may be issued under a supplemental indenture and Notes to be issued or authenticated upon transfer, replacement or exchange of Notes and any Notes to be issued in connection with a PIK Payment.
“Notes Collateral Agent” means GLAS Americas LLC, as notes collateral agent, until a successor, if any, replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, provincial, territorial, federal or foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and Guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Offer to Purchase” means an Asset Disposition Offer or a Change of Control Offer. “Offering Memorandum” means the offering memorandum dated November 28, 2022
related to the Consent Solicitation and the offer of the Notes (as a component part of the Units (as defined in the Offering Memorandum)) in exchange for 2024 Notes.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President or a Co-President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Chief Administrative Officer, the Chief Legal Officer, the Treasurer or Assistant Treasurer or the Secretary of the Company or any other person authorized by the Board of Directors or, if the Company is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of the Company. Officer of any Guarantor has a correlative meaning.
“Officer’s Certificate” means a certificate signed by an Officer of the Company or a Guarantor, as applicable, and delivered to the Trustee or the Notes Collateral Agent, as applicable.
“On-Lending” means, without double counting, the aggregate amount of all Loans, advances and/or any other proceeds made to any Loan Party and made available by any Loan Party, directly or indirectly, to the Belgian Guarantor or any of its Subsidiaries (in each case, irrespective of whether retained or on-lent by the relevant Belgian Guarantor or its Subsidiary).
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee or the Notes Collateral Agent, as applicable. The counsel may be an employee of or counsel to the Company.
“Paderborn Property” means the fee-owned real property located at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany.
“Pari Passu Secured Indebtedness” means any Indebtedness of the Company or any Guarantor that ranks pari passu in right of payment with the Obligations under the Notes or the Note Guarantees and is secured by a Lien on the Collateral that has equal Lien priority with respect to the different categories of Collateral under the Lien priorities in any applicable Intercreditor Agreement relative to the Notes and the Note Guarantees and is senior in priority to the Liens securing any Junior Lien Indebtedness; provided, that, in each case, an Authorized Representative of such Indebtedness shall have executed a joinder to the applicable Intercreditor Agreements in the form provided therein.
“Perfection Certificate” means that certain perfection certificate dated as of the Issue Date , executed and delivered by each Note Party in favor of the Notes Collateral Agent on behalf of the Secured Parties.
“Permitted Equity Issuance Prepayment” means any repayment, repurchase or redemption of Notes prior to April 1, 2024, using the Permitted Equity Proceeds Prepayment Amount.
“Permitted Equity Proceeds Prepayment Amount” means Net Cash Proceeds from any Equity Offering subsequent to the Issue Date in an aggregate amount of up to $100.0 million (excluding, for the avoidance of doubt, any Net Cash Proceeds related to the Structuring Premium (as defined in the Transaction Support Agreement)).
“Permitted Investment” means an Investment:
(1)by the Company or any of its Subsidiaries in the Company or a Guarantor (including any Persons that become Guarantors or are merged, amalgamated or consolidated into the Company or a Guarantor as a result of such Investment and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer);
(2)by a Non-Guarantor Subsidiary in a Non-Guarantor Subsidiary (including any Persons that become Non-Guarantor Subsidiaries as a result of such Investment and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer);
(3)by the Company or a Guarantor in a Non-Guarantor Subsidiary (a) using cash proceeds received on or after October 20, 2022 from one or more Non-Guarantor Subsidiaries or (b) made on or after October 20, 2022 in an aggregate amount outstanding at the time of each such Investment not to exceed $10.0 million (as reduced by the amount of capital returned from any such Permitted Investment (exclusive of items reflected in Consolidated Net Income), which reductions may not exceed in the aggregate amount the amount originally invested);
(4)by the Company or any of its Subsidiaries (a) in cash and Cash Equivalents and
(b) in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany Investments to the Board of Directors of the Company; provided, further that any Investment in respect of cash management operations that exceeds $10.0 million will only be permitted to the extent that the Company reports such Investment to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following such Investment;
(5)by the Company or any of its Subsidiaries in exchange for consideration consisting only of Capital Stock (other than Disqualified Stock) of the Company or Net Cash Proceeds of a substantially concurrent sale of Capital Stock of the Company;
(6)by the Company or any of its Subsidiaries in receivables owing to the Company or any Subsidiary and extensions of trade credit in the ordinary course of business;
(7)by the Company or any of its Subsidiaries in payroll, commission, travel and similar advances to cover matters that are reasonably expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(8)by the Company or any of its Subsidiaries in the form of loans or advances to employees, Officers or directors of the Company or any Subsidiary (i) in the ordinary course of business or (ii) in an aggregate amount not to exceed $5.0 million (including, for the avoidance of doubt, any such Investments existing as of the Issue Date) at any one time outstanding to fund the purchase of Capital Stock of the Company by such persons;
(9)acquired by the Company or any of its Subsidiaries:
(a)as part of the settlement of litigation or arbitration;
(b)in exchange for any other Investment or accounts receivable held by the Company or any such Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Company of such other Investment or accounts receivable; or
(c)as a result of a foreclosure by the Company or any of its Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(10)by the Company or any of its Subsidiaries as a result of the receipt of settlement of amounts due to the Company or any Subsidiary effected in the ordinary course of business;
(11)by the Company or any of its Subsidiaries as a result of the receipt of non-cash consideration from an Asset Disposition that was made pursuant to and in compliance with Section 4.16 or any other disposition of assets not constituting an Asset Disposition; (12)by the Company or any of its Subsidiaries in existence on the Issue Date or made pursuant to binding commitments existing on the Issue Date or an Investment consisting of any extension, modification or replacement of any such Investment or binding commitment existing on the Issue Date but, in each case, only to the extent not involving additional advances, contributions or other Investments or other increases thereof;
(13)by the Company or any of its Subsidiaries in Currency Agreements, Interest Rate Agreements, Commodity Agreements and related Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 4.09;
(14)by the Company or any of its Subsidiaries in respect of Guarantees issued in accordance with Section 4.09; (15)by the Company or any of its Subsidiaries in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Company and its Subsidiaries in connection with such plans;
(16)by the Company or any of its Subsidiaries, together with all other Investments pursuant to this clause (16), to repay, repurchase, or redeem Notes issued under this Indenture, in an aggregate amount at the time of each such Investment not to exceed the Permitted Equity Proceeds Prepayment Amount;
(17)by the Company or any of its Subsidiaries in the ordinary course of business consisting of the licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons; provided that such licensing, subleasing, or contributions of intellectual property must either be (a) non-exclusive or (b) exclusive only within the granted territory;
(18)by the Company or any of its Subsidiaries consisting of cash deposits (including escrowed deposits) pursuant to binding commitments of the Company or its Subsidiaries in effect with respect to refinancings of Indebtedness otherwise permitted under this Indenture;
(19)by the Company or any of its Subsidiaries in prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business;
(20)by the Company or any of its Subsidiaries to the extent constituting Investments, transactions made pursuant to the terms of the China Joint Venture in an aggregate amount at the time of each such Investment not to exceed $100.0 million;
(21)by the Company or any of its Subsidiaries to the extent constituting Investments, transactions made pursuant to the terms of the Wincor Joint Venture in an aggregate amount at the time of each such Investment not to exceed $100.0 million; and
(22)by the Company or any of its Subsidiaries, in cash or in the form of Investments that do not constitute transfers of Collateral, together with all other Investments pursuant to this clause (22), in an aggregate amount outstanding (as reduced by the amount of capital returned from any such Permitted Investment (exclusive of items reflected in Consolidated Net Income), which reductions may
not exceed in aggregate amount the amount originally transferred in connection with any Permitted Investment hereunder) at the time of each such Investment not to exceed $35.0 million.
“Permitted Liens” means, with respect to any Person:
(1)Liens securing (x) Indebtedness and other obligations permitted to be Incurred pursuant to Section 4.09(b)(2) and (y) any Refinancing Indebtedness in respect thereof (and any subsequently Incurred Refinancing Indebtedness in respect of any such Refinancing Indebtedness); provided, that the Liens incurred pursuant to this clause (1) shall rank equal to or junior to the Liens securing the Notes (including any Additional Notes issued in connection with the Follow-On Registered Exchange) pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements (in the case of any Junior Liens, with the Notes being treated as senior priority obligations thereunder), as applicable, in all cases subject to the Lien priorities in any applicable Intercreditor Agreement;
(2)pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws, social security or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(3)Liens imposed by law, including carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens, Incurred in the ordinary course of business;
(4)Liens for taxes, assessments or other governmental charges or levies that are not yet overdue for more than 45 days or that are being contested in good faith by appropriate proceedings, provided that appropriate reserves required pursuant to GAAP have been made in respect thereof;
(5)Liens in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances or similar obligations (including standby letters of credit and completion guarantees) issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not constitute Indebtedness;
(6)encumbrances, ground leases, easements or reservations (including reservations in any original grant from any government of any water or mineral rights or interests therein) of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that do not secure any monetary obligations and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(7)Liens securing Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(8)leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) that do not materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries and do not secure any Indebtedness;
(9)judgment Liens not giving rise to an Event of Default or that secure appeal or surety bonds related to such judgments;
(10)Liens for the purpose of securing the payment of all or a part of the purchase price of, or mortgage financings, purchase money obligations or other payments Incurred to finance assets or property (other than Capital Stock or other Investments) acquired, constructed, improved or leased in the ordinary course of business; provided that:
(a)the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Indenture and does not exceed the cost of the assets or property so acquired, constructed or improved; and
(b)such Liens are created within 180 days of construction, acquisition or improvement of such assets or property and do not encumber any other assets or property of the Company or any Subsidiary other than such assets or property and assets affixed or appurtenant thereto;
(11)Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off, revocation, refund, chargeback or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution; provided that:
(a)such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board; and
(b)such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution;
(12)rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions (i) in relation to the establishment, maintenance or administration of deposit accounts, securities accounts or arrangements relating to a Cash Management Agreement or (ii) in relation to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations Incurred in the ordinary course of business of the Company or any Subsidiary;
(13)Liens in favor of financial institutions against cash pooling arrangements or bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business and consistent with standard business practices in such foreign jurisdiction; provided that any such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or its Subsidiaries;
(14)Liens in favor of a commodity, brokerage or security intermediary who holds a commodity, brokerage or, as applicable, a security account on behalf of the Company or a Subsidiary provided such Lien encumbers only the related account and the property held therein and relates to the security for the activities associated with such account;
(15)Liens arising from Uniform Commercial Code or PPSA (or similar law of any foreign jurisdiction) financing statement filings or similar public filings, registrations or agreements in foreign jurisdiction regarding leases and consignment or bailee arrangements in the ordinary course of business and Liens securing liabilities in respect of indemnification obligations thereunder as long as each such Lien only encumbers the assets that are the subject of the related lease (or contained in such leasehold) or consignment or bailee, and other precautionary statements, filings or agreements;
(16)Liens existing on the Issue Date (other than Liens permitted under clause (1)) and Liens securing the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes, and the 2023 Credit Facility and other secured obligations permitted to be Incurred under Section 4.09(b)(3), in each case subject to the Lien priorities in any applicable Intercreditor Agreement;
(17)Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however, that any such Lien may not extend to any other property owned by the Company or any Subsidiary;
(18)Liens on property at the time the Company or a Subsidiary acquired the property, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such acquisition; provided, further, however, that such Liens may not extend to any other property owned by the Company or any Subsidiary;
(19)deposits in the ordinary course of business to secure liability to insurance
carriers;
(20)options, put and call arrangements, rights of first refusal and similar rights
relating to Investments in joint ventures, partnerships and the like permitted to be made under this Indenture;
(21)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(22)Liens securing Indebtedness or other obligations of a Subsidiary owing to the Company or another Subsidiary;
(23)[reserved];
(24)Liens securing Refinancing Indebtedness Incurred to refinance as a whole or in part, Indebtedness that was previously so secured pursuant to clauses (10), (16), (17) and (18) and this clause (24) of this definition; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced; provided, further, that any such Liens shall rank equal to or junior to the Liens securing Indebtedness being refinanced or Incurred in compliance with this Indenture pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements (in the case of any Junior Liens, with any ABL Indebtedness and the Notes being treated as senior priority obligations thereunder), as applicable, in all cases subject to the Lien priorities in any applicable Intercreditor Agreement;
(25)any interest or title of a lessor under any Capitalized Lease Obligation or operating lease;
(26)Liens in favor of the Company or any Subsidiary;
(27)Liens in favor of customs and revenues authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(28)[reserved];
(29)[reserved];
(30)Liens on assets and property of Non-Guarantor Subsidiaries that are Foreign Subsidiaries that secure Indebtedness and other obligations of Non-Guarantor Subsidiaries that are Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed $10.0 million;
(31)[reserved];
(32)Liens on assets of the Company or any of its Subsidiaries securing Indebtedness and other Obligations and related Hedging Obligations and related banking services or cash management obligations that were Incurred pursuant to Section 4.09(b)(1); provided, that such Liens shall be junior to the Liens on the ABL Non-Priority Collateral securing the Notes shall be subject to the ABL Intercreditor Agreement;
(33)Liens on cash or Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(34)Liens on the collateral in respect of the 2025 Credit Facility (or any other applicable credit facility) securing obligations in respect of any Bi-lateral LC/WC Agreement permitted to be Incurred under Section 4.09(b)(22); and
(35)Liens securing Indebtedness in an aggregate principal amount outstanding at any one time not to exceed $25.0 million; provided, that (a) the aggregate principal amount of any Liens Incurred hereunder securing any funded Indebtedness outstanding at any one time shall not exceed $10.0 million and (b) any such Liens securing any funded Indebtedness shall rank junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility, and the 2025 Notes pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements, as applicable.
“Person” means any individual, corporation, limited liability company, unlimited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“PIK Interest” means the payment of interest (including Additional Amounts, if any) on the Notes on an Interest Payment Date, which is paid, at the Company’s election, in accordance with the terms hereof (including upon timely notice), by increasing the amount of outstanding Notes or, with respect to any Definitive Note, by issuing additional PIK Notes.
“Polish Collateral Agreements” means the collateral agreements governed by Polish law set forth on Appendix C hereof.
“Polish Collateral Documents” means the Polish Collateral Agreements and each mortgage (hipoteka), assignment (cesja), transfer of title by way of security (przewłaszczenie na zabezpieczenie), pledge (zastawy), suretyship (poręczenie), guarantee (gwarancja), letter of credit (akredytywa), promissory note (weksel własny), bill of exchange (weksel trasowany), right of set-off (prawo potrącenia), title retention (prawo zatrzymania), right of first refusal (prawo pierwokupu, prawo pierwszeństwa), power of attorney by way of security (pełnomocnictwo na zabezpieczenie), accession to debt (przystąpienie do długu), submission to execution (poddanie się egzekucji) or any other agreement, security interest, encumbrance or arrangement having the effect of security or granting a security or giving security or preferential ranking to a creditor, as applicable, governed by Polish law in connection
with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Polish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Polish Guarantor” means any Guarantor organized or incorporated in Poland. “PPSA” means the Personal Property Security Act (Ontario), including the regulations
and Minister’s orders thereto, provided that if perfection or the effect of perfection or non-perfection or the priority of any Lien created under the Collateral Documents on the Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in a jurisdiction in Canada other than the Province of Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including the Civil Code of Quebec) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Preferred Stock,” as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distributions of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.
“Priority Secured Indebtedness” means the Obligations under each of the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes, and the 2023 Credit Facility, in each case, solely to the extent secured by a Lien on any part of the Collateral, which Lien is senior in priority to the Lien securing the Notes or the Note Guarantees on such part of the Collateral.
“Pro Forma Test Conditions” means, if on the date of a transaction or series of transactions and after giving effect thereto on a pro forma basis, (1) the Consolidated Coverage Ratio for the Company and its Subsidiaries is at least 2.00 to 1.00 and (2) no Default or Event of Default will have occurred or be continuing or would occur as a consequence of Incurring any Indebtedness in connection with entering into such transaction(s).
“Purchased Entities” means Wincor Nixdorf and its Subsidiaries.
“Rating Agency” means each of S&P and Moody’s, or, if S&P or Moody’s or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody’s or both, as the case may be.
“Record Date” for the interest payable on any applicable Interest Payment Date means the January 1 or July 1 (whether or not a Business Day) immediately preceding such Interest Payment Date.
“Refinancing Indebtedness” means Indebtedness that is Incurred in exchange or replacement for, or to refund, refinance, replace, exchange, renew, repay, prepay, purchase, redeem defease, retire or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” “refinanced” and “refinancing” shall each have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including additional Indebtedness Incurred to pay premiums (including tender premiums), defeasance costs, accrued interest and fees and expenses (including fees and expenses relating to the Incurrence of such Refinancing Indebtedness) in connection with any such refinancing) including Indebtedness that refinances Refinancing Indebtedness or Incurred in connection with a repurchase, redemption or similar transaction, whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case including by exchange offers and private exchanges; provided, however, that:
(1)(a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity later than the Stated Maturity of the Notes;
(2)the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced;
(3)such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay premiums required by the instruments governing such existing Indebtedness or tender premiums, defeasance costs, accrued interest and fees and expenses in connection with any such refinancing);
(4)if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(5)if the Indebtedness being refinanced is secured, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being refinanced (and, if the Indebtedness being refinanced is unsecured, the Refinancing Indebtedness Incurred in respect of such Indebtedness may not be secured with any Liens);
(6)Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Company or a Guarantor; and
(7)Refinancing Indebtedness shall not be Guaranteed or secured by additional guarantors or collateral, respectively, relative to the refinanced Indebtedness.
“Released Domestic Collateral” means the ABL Priority Domestic Collateral and the Non-ABL Domestic Released Collateral.
“Required Account” means (A) all deposit accounts or securities accounts of the Domestic Note Parties and the Canadian Note Parties, excluding any Foreign Subsidiary (other than any Subsidiaries incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof), other than (i) accounts having a de minimis balance; provided that the aggregate balance in all accounts excluded by this de minimis threshold shall not exceed $2,500,000 at any time,
(ii) payroll, disbursement and other fiduciary accounts, (iii) zero balance disbursement account, (iv) other trust, escrow, customs and fiduciary accounts, (v) cash collateral accounts solely holding cash collateral upon which Liens permitted by Section 4.10 exist and (vi) tax accounts, including, without limitation, sales tax accounts and (B) all deposit accounts and securities accounts that are subject to control agreements in favor of the ABL Collateral Agent.
“Required Superpriority Lenders” has the meaning assigned to it in the Superpriority
Credit Facility.
“Required Noteholders” means Holders of a majority in principal amount of the Notes then outstanding.
“Requirement of Law” means as to any Person, the certificate of incorporation and by- laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other governmental authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Investment” means any Investment other than a Permitted Investment.
“S&P” means Standard & Poor’s Ratings Services or any successor to its rating agency business.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness of the Company or any of its
Subsidiaries secured by a Lien.
“Secured Parties” means the Trustee, the Notes Collateral Agent, the Holders and each other Person who is owed any portion of the Obligations under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Security Agreement” means the New York law governed security agreement among the Company, the other Guarantors and the Notes Collateral Agent in form and substance reasonably satisfactory to the Notes Collateral Agent.
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Similar Business” means any business similar in nature to any business conducted or proposed to be conducted by the Company and its Subsidiaries on the Issue Date or any business that is reasonably related, complementary, incidental or ancillary thereto or a reasonable extension, development or expansion of, the business conducted by the Company and its Subsidiaries on the Issue Date, in each case, as determined in good faith by the Company.
“Spanish Collateral Agreements” means the collateral agreements governed by Spanish law set forth on Appendix C hereof.
“Spanish Collateral Documents” means the Spanish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Spanish law in connection with this Indenture and the Agreed Security Principles
to secure any of the Obligations which may be entered into from time to time for the benefit of all the Secured Parties identified therein; provided that each Spanish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Specified Foreign Subsidiary” means each Subsidiary domiciled or organized in a Specified Jurisdiction.
“Specified Intercompany Claims” means collectively, (i) that certain intercompany claim owed by Diebold Germany to the Company (the amount of which, as of the Issue Date, is approximately
€656,000,000.00) and (ii) that certain intercompany claim owed by Diebold Germany to the Dutch Issuer Guarantor (the amount of which, as of the Issue Date, is approximately €343,000,000.00).
“Specified Jurisdiction” means any of Belgium, Canada, France, Germany, Italy, the Netherlands, Poland, Spain, Sweden and England and Wales.
“Stated Maturity” means, with respect to any security, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but not including any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Stub Obligations” means any 2024 Notes or Obligations under the 2023 Credit Facility. “Subordinated Obligation” means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) that is subordinated or junior in right of payment to the Notes (including any Additional Notes issued in connection with the Follow-On Registered Exchange) pursuant to its terms.
“Subsidiary” of any Person means (1) any corporation, unlimited liability company, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or Persons performing similar functions) or (2) any partnership, joint venture limited liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is, in the case of clauses (1) and (2), at the time owned or controlled, directly or indirectly, by
(a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
“Superpriority Credit Facility” means that certain credit agreement, to be dated on or around the Issue Date, among Diebold Germany, the guarantors parties thereto from time to time, the Superpriority Credit Facility Administrative Agent, the Superpriority Credit Facility Collateral Agent and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“Superpriority Credit Facility Administrative Agent” means GLAS USA LLC in its capacity as the administrative agent under the Superpriority Credit Facility, or any successor representative acting in such capacity.
“Superpriority Credit Facility Collateral Agent” means GLAS Americas LLC in its capacity as the collateral agent under the Superpriority Credit Facility, or any successor representative acting in such capacity.
“Superpriority Credit Facility Obligations” means the “Obligations” as defined in the Superpriority Credit Facility.
“Swedish Collateral Agreements” means the collateral agreements governed by Swedish law set forth on Appendix C hereof.
“Swedish Collateral Documents” means the Swedish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Swedish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Swedish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Transaction Support Agreement” means that certain transaction support agreement, dated as of October 20, 2022, by and among the Company, certain of its Subsidiaries and certain holders of its existing Indebtedness (together with all exhibits, annexes and schedules thereto, and as amended, restated, supplemented or replaced, in whole or in part, from time to time).
“Transfer Restricted Notes” means Definitive Notes and any other Notes that bear or are required to bear the Restricted Notes Legend.
“Treasury Rate” means as of any date of redemption of Notes the yield to maturity at the time of computation of U.S. Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source or similar market data)) most nearly equal to the period from the redemption date to October 14, 2026; provided, however, that if the period from the redemption date to October 14, 2026 is not equal to the constant maturity of a U.S. Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of U.S. Treasury securities for which such yields are given, except that if the period from the redemption date to October 14, 2026 is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended. “Trustee” means U.S. Bank Trust Company, National Association, as trustee, until a
successor, if any, replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.
“United States” means the United States of America.
“Unit Split Date” has the meaning provided to such term in the Unit Agreement. “Units Trustee” has the meaning provided to such term in the Unit Agreement.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled to vote in the election of directors, managers or trustees, as applicable, of such Person.
“Warrants” mean those certain warrants, with a five-year term from issuance, exercisable on or after April 1, 2024 for that number of shares of Common Stock of the Company that will represent, in aggregate, 19.99% of the number of shares of Common Stock of the Company issued and outstanding as of the Business Day prior to the Issue Date.
“Wholly Owned Subsidiary” means a Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares or a de minimis amount of shares held by Affiliates) is owned by the Company or another Wholly Owned Subsidiary regardless of Affiliate ownership status.
“Wincor Joint Venture” means any single joint venture that may be entered into by one or more of the Purchased Entities.
“Wincor Nixdorf” means Wincor Nixdorf Aktiengesellschaft. “Wincor Nixdorf Shares” means the Capital Stock of Wincor Nixdorf.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
“Additional Amounts” ............................................................................................. | 4.19(a) |
“Affiliate Transaction” ............................................................................................. | |
“Agent Members” ..................................................................................................... | 2.1(c) of Appendix A |
“Applicable Event” .................................................................................................. | 6(b) of Appendix B |
“Applicable Procedures” ........................................................................................ | 1.1(a) of Appendix A |
“Asset Disposition Offer” ........................................................................................ | 4.16(c) |
“Asset Disposition Offer Amount” ........................................................................... | |
“Asset Disposition Offer Period” ............................................................................. | |
“Asset Disposition Proceeds” ................................................................................. | 4.16(b) |
“Asset Disposition Purchase Date” ......................................................................... | |
“Attached Notes” ..................................................................................................... | 2.01 |
“Auditor’s Determination” ...................................................................................... | 10.02(a) |
“Authentication Order” ............................................................................................ | |
“balance sheet date” ................................................................................................ | 1.01 |
“Bondholder Call” ................................................................................................... | 4.06(c) |
“Carryover Amount” ................................................................................................ | 4.08(b)(7) |
“Capital Impairment” ............................................................................................. | 10.02(a) |
“Change of Control Offer” ...................................................................................... | 4.15(a) |
“Change of Control Payment” ................................................................................. | |
“Change of Control Payment Date” ........................................................................ | |
“Chargor” ............................................................................................................... | 6(e)(ii) of Appendix B |
“Clearstream” ......................................................................................................... | 1.1(a) of Appendix A |
“Commission” ......................................................................................................... | 1.04 |
“Corresponding Debt” ............................................................................................ | 13.20(b) |
“Covenant Defeasance” ........................................................................................... | 8.03(a) |
| | | | | |
| Term | Defined in Section |
“Definitive Notes Legend” ....................................................................................... | 2.2(e)(i) of Appendix A |
“Distribution Compliance Period” .......................................................................... | 1.1(a) of Appendix A |
“Enforcement of Claims” ........................................................................................ | 10.02(a) |
“ERISA Legend”....................................................................................................... | 2.2(e) of Appendix A |
“Euroclear” .............................................................................................................. | 1.1(a) of Appendix A |
“Event of Default” .................................................................................................... | 6.01(a) |
“Excess Proceeds” ................................................................................................... | |
“Expiration Date” .................................................................................................... | 1.05(j) |
“FATCA” ................................................................................................................. | 4.19(b) |
“Foreign Guarantor Jurisdiction” .......................................................................... | 4(a) of Appendix B |
“Foreign Note Party” .............................................................................................. | 1(a) of Appendix B |
“Global Note” .......................................................................................................... | 2.1(b) of Appendix A |
“Global Notes Legend” ............................................................................................ | 2.2(e) of Appendix A |
“Group” ................................................................................................................... | 13(a) of Appendix B |
“Guaranteed Obligor” ............................................................................................ | 10.02(b)(ii)(2) |
“Guaranteed Obligations” ...................................................................................... | 10.01(a) |
“IAI” ........................................................................................................................ | 1.1(a) of Appendix A |
“IAI Global Note” ................................................................................................... | 2.1(b) of Appendix A |
“IAI Notes” .............................................................................................................. | 2.1(a) of Appendix A |
“Indenture Currency” .............................................................................................. | 13.21(b) |
“indenture securities” .............................................................................................. | 1.04 |
“indenture security holder”...................................................................................... | 1.04 |
“indenture to be qualified”....................................................................................... | 1.04 |
“indenture trustee” or “institutional trustee” ........................................................... | 1.04 |
“Italian Usury Law”................................................................................................. | 2.15(a) |
“Judgment Currency” .............................................................................................. | 13.21(b) |
“Legal Defeasance” ................................................................................................. | 8.02(a) |
“Management Notification” .................................................................................... | 10.02(a) |
“Non-Cooperative Jurisdiction” ............................................................................. | 4.19(a)(8) |
“Non-U.S. Taxing Jurisdiction” .............................................................................. | 4.19(b) |
“Note Register” ........................................................................................................ | 2.03(a) |
“obligor” .................................................................................................................. | 1.04 |
“Overriding Principle” ........................................................................................... | 4(b) of Appendix B |
“Parallel Debt” ....................................................................................................... | 13.20(a) |
“Parallel Debt Undertaking” .................................................................................. | 13.20(a) |
“Paying Agent” ........................................................................................................ | 2.03(a) |
“PDF” ..................................................................................................................... | 13.16 |
“PIK Notes” ............................................................................................................ | 2 of Exhibit A |
“PIK Payment” ........................................................................................................ | 2 of Exhibit A |
“Premises” .............................................................................................................. | 11.06(a) |
“Proceeds Trigger Date” ........................................................................................ | 4.16(b) |
“QIB” ...................................................................................................................... | 1.1(a) of Appendix A |
“Registrar” ............................................................................................................... | 2.03(a) |
“Regulation S” ......................................................................................................... | 1.1(a) of Appendix A |
| | | | | |
“Regulation S Global Note” .................................................................................... | 2.1(b) of Appendix A |
“Regulation S Notes” .............................................................................................. | 2.1(a) of Appendix A |
“Reinstatement Date” .............................................................................................. | 4.17(b) |
“Relevant Asset” ...................................................................................................... | 10.02(a) |
“Required Holder Consent” .................................................................................... | 6(e)(ii) of Appendix B |
| | | | | |
| Term | Defined in Section |
“Restricted Notes Legend” ....................................................................................... | 2.2(e)(i) of Appendix A |
“Restricted Payment” ............................................................................................... | |
“Rule 144” ............................................................................................................... | 1.1(a) of Appendix A |
“Rule 144A” ............................................................................................................ | 1.1(a) of Appendix A |
“Rule 144A Global Note” ........................................................................................ | 2.1(b) of Appendix A |
“Rule 144A Notes” .................................................................................................. | 2.1(a) of Appendix A |
“Separated Notes” ................................................................................................... | 2.01 |
“Spain” ..................................................................................................................... | 1.08(b)(i) |
“Spanish Civil Code” ............................................................................................... | 1.08(b)(ii) |
“Spanish Civil Procedural Law”.............................................................................. | 1.08(b)(iii) |
“Spanish Commercial Code” ................................................................................... | 1.08(b)(iv) |
“Spanish Companies Law”....................................................................................... | 1.08(b)(v) |
“Spanish Guarantor” ............................................................................................... | 1.08(b)(vi) |
“Spanish Insolvency Law”........................................................................................ | 1.08(b)(vii) |
“Spanish Public Document”..................................................................................... | 1.08(b)(viii) |
“Suspended Covenants” .......................................................................................... | 4.17(a) |
“Suspension Date” .................................................................................................. | 4.17(a) |
“Suspension Period” ............................................................................................... | 4.17(b) |
“Taxes” .................................................................................................................... | 4.19(b) |
“Unit” ...................................................................................................................... | 2.14 |
“United States”......................................................................................................... | 1.1(a) of Appendix A |
“Unrestricted Global Note” ..................................................................................... | 1.1(a) of Appendix A |
“U.S. person” .......................................................................................................... | 1.01 of Appendix A |
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(1)a term defined in Section 1.01 or Section 1.02 has the meaning assigned to it therein, and a term used herein that is defined in the Trust Indenture Act, either directly or by reference therein, shall have the meaning assigned to it therein; (2)an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3)“or” is not exclusive;
(4)words in the singular include the plural, and words in the plural include the singular;
(5)provisions apply to successive events and transactions;
(6)unless the context otherwise requires, any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;
(7)the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision;
(8)“including” means including without limitation;
(9)references to sections of, or rules under, the Securities Act or the Exchange Act or the Trust Indenture Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(10)unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture; and
(11)in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Company may classify such transaction as it, in its sole discretion, determines.
Section 1.04 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act as applicable to this Indenture, the provision is incorporated by reference in and made a part of this Indenture upon and after, but not before, the qualification of this Indenture under the Trust Indenture Act.
The following Trust Indenture Act terms used in this Indenture have the following
meanings:
“Commission” means the SEC; “indenture securities” means the Notes;
“indenture security holder” means a Holder of a Note; “indenture to be qualified” means this Indenture
“indenture trustee” or “institutional trustee” means the Trustee; and
“obligor” on the Notes and the Note Guarantees means the Company and the Guarantors,
respectively, and any successor obligor upon the Notes and the Note Guarantees, respectively.
All other terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rules under the Trust Indenture Act have the meanings so assigned to them.
Section 1.05 Acts of Holders.
(a)Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantors. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Company and the Guarantors, if made in the manner provided in this Section 1.05.
(b)The fact and date of the execution by any Person of any such instrument or writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of any
notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof or (2) in any other manner deemed reasonably sufficient by the Trustee. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.
(c)The ownership of Notes shall be proved by the Note Register.
(d)Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Company or the Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.
(e)The Company may set a record date for purposes of determining the identity of Holders entitled to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, or to vote on or consent to any action authorized or permitted to be taken by Holders; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in clause (f) below. Unless otherwise specified, if not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or vote or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or vote. If any record date is set pursuant to this clause (e), the Holders on such record date, and only such Holders, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action (including revocation of any action), whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on such record date. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 13.02.
(f)The Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section 6.01, (2) any declaration of acceleration referred to in Section 6.02, (3) any direction referred to in Section 6.05 or (4) any request to pursue a remedy as permitted in Section 6.06. If any record date is set pursuant to this paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on such record date. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company and to each Holder in the manner set forth in Section 13.02.
(g)Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or
its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
(h)Without limiting the generality of the foregoing, a Holder, including a Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.
(i)The Company may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by a Depositary entitled under the procedures of such Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders; provided that if such a record date is fixed, only the beneficial owners of interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date.
(j)With respect to any record date set pursuant to this Section 1.05, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Notes in the manner set forth in Section 13.02, on or prior to both the existing and the new Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.05, the party hereto which set such record date shall be deemed to have initially designated the 30th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this clause (j).
Section 1.06 Quebec Interpretive Provisions.
For purposes of the interpretation or construction of this Indenture pursuant to the laws of the Province of Quebec, for purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Collateral Document) and for all other purposes pursuant to which the interpretation or construction of any other Collateral Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, a “reservation of ownership”, “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the PPSA shall be deemed to include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs in favour of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall
be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”,
(p) “easement” shall be deemed to include “servitude”, (q) “priority” shall be deemed to include “prior claim” or “rank”, as applicable, (r) “survey” shall be deemed to include “certificate of location and plan”,
(s) “fee simple title” and “fee title” shall be deemed to include “right of ownership”, (t) “foreclosure” shall be deemed to include “the exercise of a hypothecary right”, (u) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (v) “lease” for personal or movable property shall be deemed to include a “contract of leasing (crédit-bail)” and (x) “deposit account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Quebec.
Section 1.07 French Terms.
In this Indenture, where it relates to a French Guarantor:
(a)“gross negligence” means “faute lourde”;
(b)a “guarantee” means any type of “sûreté personnelle”;
(c)“merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code;
(d)“security interest” includes any type of security (sûreté réelle) and transfer by way of security;
(e)a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f)“trustee, fiduciary and fiduciary duty” has in each case the meaning given to such
term under any applicable law;
(g)“willful misconduct” means “dol”;
(h)a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code;
(i)a “suspension of payments,” a “moratorium of any indebtedness,” a “winding- up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code;
(j)a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(k)a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refer to, any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur” or similar officer; and
(l)a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
Section 1.08 Spanish Terms and Definitions.
(a)In this Indenture, where it relates to a Spanish Guarantor, a person incorporated or formed or having its center of main interests in Spain, or to Spanish law, a reference to:
(i)“administration” or “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including without limitation (i) a declaración de concurso necesario o voluntario, as well as any filing for voluntary insolvency (solicitud de inicio del procedimiento de concurso voluntario), the request of declaration of insolvency by a third party (solicitud de concurso por acreedores), a declaration of insolvency (auto de declaración de concurso); (ii) any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, and any petition to appoint a restructuring expert pursuant to articles 672 et seq.; and (iii) a judicial or out-of-court composition agreement (convenio judicial o extrajudicial con acreedores or transacción judicial o extrajudicial) or any filing for a workout homologation petition (solicitud de homologación de un plan de reestructuración). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law;
(ii)“control” has the meaning stated under article 42 of the Spanish Commercial Code.
(iii)“financial assistance” means (a) in respect to a Spanish Guarantor incorporated as a Sociedad Anónima, financial assistance under Article 150 of the Spanish Companies Law; and
(b)in respect to a Spanish Guarantor incorporated as a Sociedad de Responsabilidad Limitada, financial assistance under Article 143 of the Spanish Companies Law;
(iv)“winding up”, “liquidation” or “dissolution” includes, without limitation, disolución, liquidación or any other similar proceedings and shall be used to those circumstances as regulated under the laws of Spain from time to time;
(v)a “liquidator”, “receiver”, “administrative receiver”, “administrator” or “compulsory manager” includes, without limitation, mediador conrursal, administrador del concurso, administración concursal or a liquidador or any other person or entity performing the same or a similar function;
(vi)a “composition” or “arrangement” or similar arrangement with any creditor includes, without limitation, a convenio de acreedores or plan de reestructuración to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under Title II or Title III of the Second Book of the Spanish Insolvency Law;
(vii)a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem security right governed by Spanish law; and
(viii)a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).
(b) In this Indenture, the following terms shall have the following definitions:
(i)
“Spain” shall mean the Kingdom of Spain.
(ii)Spanish Civil Code” shall mean the Spanish Código Civil, as amended from time to time.
(iii)“Spanish Civil Procedural Law” shall mean Law 1/2000 of 7 January (Ley de
Enjuiciamiento Civil), as amended from time to time.
(iv)“Spanish Commercial Code” shall mean the Spanish Commercial Code published by virtue of the Royal Decree of 22 August 1885 (Real decreto de 22 de agosto de 1885 por el que se publica el Código de Comercio), as amended from time to time.
(v)“Spanish Companies Law” shall mean the Royal Legislative Decree 1/2010, of 2 July, whereby the companies act is approved (Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital), as amended from time to time.
(vi)“Spanish Guarantor” means any Guarantor incorporated under the laws of Spain.
(vii)“Spanish Insolvency Law” means the Spanish Royal Legislative Decree 1/2020 of 5 May 2020 (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal) approving the Spanish Recast Insolvency Law, as amended or superseded from time to time, and, in particular but not limited to, pursuant to the Spanish Law 16/2022, of 5 September, amending the consolidated text of the Spanish Insolvency Law (Ley 16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal).
(viii)“Spanish Public Document” shall mean a Spanish law notarial deed (documento público), being either an escritura pública or a póliza o efecto intervenido por notario español.
Section 1.09 Dutch Terms
As used in this Indenture, where it relates to a Dutch Guarantor, a reference to: (i) organizational documents means the deed of incorporation (akte van oprichting), articles of association (statuten) and an extract of the Dutch Chamber of Commerce (Kamer van Koophandel); (ii) a necessary corporate or other organizational action where applicable includes without limitation: (A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and
(B) obtaining a positive or neutral advice, which, if conditional, contains conditions which in the opinion of the Trustee are acceptable and can reasonably be expected to be satisfied by a Dutch Guarantor without breaching the terms of this Indenture, from the competent works council(s); (iii) any Lien and any security interest includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (zakelijk recht) created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); (iv) a bankruptcy, insolvency, liquidation, winding up, or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (v) a moratorium includes (voorlopige) surseance van betaling and granted a moratorium includes (voorlopige) surseance verleend; (vi) a trustee, includes a curator and a liquidator includes a curator; (vii) an administrator includes a bewindvoerder, a beoogd bewinvoerder, a herstructureringsdeskundige or an observator; (viii) a receiver or an administrative receiver does not include a curator or bewindvoerder; (ix) any “procedure or step” taken in connection with insolvency proceedings includes a Dutch Guarantor having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax
Collection Act of the Netherlands (Invorderingswet 1990); (x) an attachment includes a beslag; (xi) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur); (xii) a reorganization includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet); (xiii) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur) and (xiv) a “subsidiary” includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code (Burgerlijk Wetboek). Where “the Netherlands” or “Dutch” is referred to it refers only to the European part of the Kingdom of the Netherlands and its laws respectively.
Section 1.10 Swedish Terms.
Notwithstanding and overriding any other provision of this Indenture and/or any exhibit or schedule thereto:
(a)any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent;
(b)for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Swedish Collateral Document, assign a proportionate part of the security interests granted under that Swedish Collateral Document together with a proportional part of the security interest in that Swedish Collateral Document;
(c)any security granted under a Swedish Collateral Document will be granted to the secured parties represented by the Notes Collateral Agent;
(d)a “compromise” or “composition” with any creditor includes (a) any write-down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (b) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”);
(e)a “receiver”, “trustee” or “liquidator” includes (a) ‘rekonstruktör’ under the Swedish Company Reorganisation Act, (b) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (c) ‘likvidator’ under the Swedish Companies Act;
(f)a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any ‘delning’ implemented in accordance with Chapter 24 of the Swedish Companies Act;
(g)a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a ‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act;
(h)“gross negligence” means ‘grov vårdslöshet’ under Swedish law;
(i)a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates;
(j)an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act;
(k)in relation to this Indenture, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the Swedish Companies Act;
(l)Notwithstanding any other provisions in this Indenture, the release of any perfected Liens (or any Liens purported to be perfected) created by a Swedish Collateral Document (“Swedish Collateral”) will always be subject to the prior written consent of the Notes Collateral Agent (acting in its sole discretion but in accordance with the applicable Swedish Collateral Document and Note Document). Each Secured Party authorizes and directs the Notes Collateral Agent to release Swedish Collateral as provided in Section 11.07 of this Agreement (but in accordance with the applicable Swedish Collateral Document) without notification or further reference to the Secured Parties. This provision supersedes any conflicting provision in this Indenture.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms.
Provisions relating to the Initial Notes, Additional Notes and any other Notes issued under this Indenture are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture. The Notes and the Trustee’s certificate of authentication shall each be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rules or agreements with national securities exchanges to which the Company or any Guarantor is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). Each Note shall be dated the date of its authentication. On the Issue Date the Notes forming part of Units shall be issued in definitive form and evidenced by Notes (the “Attached Notes”) deposited on behalf of the Issuer with the Units Trustee, as custodian for the beneficial owners, duly executed by the Company and authenticated by the Trustee as provided herein, in the form of (1) one or more Attached Notes representing Notes offered and sold by the Issuer to IAIs in reliance on Section 4(a)(2) of the Securities Act, (2) one or more Attached Notes representing Notes offered and sold by the Issuer to Persons other than U.S. persons in reliance on Regulation S, and (3) one or more Attached Notes representing Notes offered and sold to QIBs. In connection with the Follow-On Registered Exchange, any Additional Notes that are issued and that form part of the Units shall be issued in definitive form and evidenced by one or more Attached Notes deposited on behalf of the Issuer with the Units Trustee, as custodian for the beneficial owners, duly executed by the Company and authenticated by the Trustee as provided herein.
The Attached Notes shall remain in the form of Attached Notes until such Notes become separable on the relevant Unit Split Date as provided in the Unit Agreement (thereinafter, “Separated Notes”), at which time the principal amount of Notes represented by the relevant Attached Notes as set forth in the “Schedule of Decreases of Principal in the Attached Note” thereto shall be decreased to reflect the increase in the principal amount of Separated Notes represented by Global Notes as provided in the “Schedule of Exchanges of Interests and Transfers of Principal in the Global Note” attached thereto. From and after the Unit Split Date, except as provided in Section 2.06 or in Appendix A, Separated Notes, including Separated Notes issued upon any transfer or exchange thereof, shall be issued in the form of one
or more Global Notes, which shall be deposited on behalf of the Issuer with the Depositary (or, at the direction of the Depositary, with the Custodian or such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Issuer and authenticated by the Trustee as hereinafter provided. On the Issue Date the Issuer shall issue and execute Global Notes, initially representing no Separated Notes, in the form of (1) one or more IAI Global Notes,
(2) one or more Regulation S Global Notes and (3) one or more Rule 144A Global Notes. From and after the Unit Split Date, the Trustee shall increase the principal amount of Notes represented by the relevant Global Notes as provided in the “Schedule of Exchanges of Interests and Transfers of Principal in the Global Note” attached thereto. Subject to the issuance of additional Notes or the increase in the principal amount of the Global Notes in order to evidence PIK Interest (which additional Notes or increased principal amount shall be in denominations of $1.00 and integral multiples of $1.00 in excess thereof), the Notes shall be issuable only in denominations of $2,000 and any integral multiples of $1.00. On any Interest Payment Date on which the Company pays interest in PIK Interest (a “PIK Payment”) with respect to a Global Note, the Trustee shall (subject to the Company delivering to the Trustee and the Paying Agent (if other than the Trustee) written notification, executed by an Officer of the Company, substantially in the form of Exhibit F hereto, setting forth the amount of PIK Interest to be paid on such Interest Payment Date and directing the Trustee and the Paying Agent (if other than the Trustee) to increase the principal amount of the Global Notes in accordance with this paragraph, which notification the Trustee and Paying Agent shall be entitled to rely upon) increase the principal amount of such Global Note by an amount equal to the interest payable as PIK Interest, rounded up to the nearest whole dollar, for the relevant Interest Period on the principal amount of such Global Note as of the relevant Record Date for such Interest Payment Date, to the credit of the Holders of such Global Note on such Record Date, pro rata in accordance with their interests, and an adjustment shall be made on the books and records of the Trustee with respect to such Global Note to reflect such increase. On any Interest Payment Date on which the Company pays PIK Interest with respect to a Definitive Note or otherwise issues definitive PIK Notes, the principal amount of any definitive PIK Notes issued to any Holder, for the relevant Interest Period on the principal amount of such Note as of the relevant Record Date for such Interest Payment Date, shall be rounded up to the nearest whole dollar.
For each of the Interest Periods commencing on or after July 15, 2025, the Company may elect, no later than 15 days prior to the relevant Interest Payment Date, to pay interest in cash or in the form of PIK Interest and, if the Company elects to pay PIK Interest in respect of an Interest Period, the Company shall deliver to the Trustee and the Paying Agent written notification, executed by an Officer of the Company, substantially in the form of Exhibit E, setting forth such election no later than 15 days prior to the relevant Interest Payment Date (and the Trustee shall furnish a copy thereof to the Holders in accordance with the Applicable Procedures).
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company, the Guarantors, the Trustee and the Notes Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Company pursuant to an Asset Disposition Offer as provided in Section 4.16 or a Change of Control Offer as provided in Section 4.15, and otherwise as not prohibited by this Indenture. The Notes shall not be redeemable, other than as provided in Article 3. No additional Notes (other than any PIK Notes issued in connection with the payment of interest or as otherwise set forth herein) may be issued under this Indenture; provided, that in connection with the Follow-On Registered Exchange, the Company may issue Additional Notes in an amount that
may not exceed the Allowed Follow-On Issuance Amount. Any such PIK Notes and Additional Notes shall rank pari passu with the Initial Notes, may be created and issued without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms, including as to status, redemption or otherwise (other than issue date, issue price and, if applicable, the first Interest Payment Date and the first date from which interest will accrue), as the Initial Notes; provided that the Company’s ability to issue Additional Notes shall be subject to the Company’s compliance with Section 4.09; provided further that if any Additional Notes are not fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will be issued as a separate series under this Indenture and will have a separate CUSIP number and ISIN from the Initial Notes. Any Additional Notes shall be issued with the benefit of one or more supplemental indentures to this Indenture.
Section 2.02 Execution and Authentication.
(a)At least one Officer shall execute the Notes on behalf of the Company by manual, electronic or facsimile signature. If an Officer whose signature is on a Note no longer holds that office or is no longer authorized to represent the Issuer at the time a Note is authenticated, the Note shall nevertheless be valid.
(b)A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual, electronic or facsimile signature of an authorized signatory of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
(c)On the Issue Date, the Trustee shall, upon receipt of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate and deliver the Initial Notes. In addition, at any time and from time to time (but subject to Section 2.01), the Trustee shall, upon receipt of an Authentication Order, authenticate and deliver any Additional Notes in an aggregate principal amount specified in such Authentication Order for such Additional Notes issued hereunder.
(d)The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders, the Company or an Affiliate of the Company.
(e)The Trustee shall authenticate and make available for delivery upon a written order of the Company signed by one Officer of the Company (1) Initial Notes for original issue on the Issue Date in an aggregate principal amount of $333,616,814 (comprised of (i) one or more Attached Notes having an initial aggregate principal amount of $333,616,814 and (ii) one or more Global Notes each having no initial aggregate principal amount), (2) subject to the terms of this Indenture, Additional Notes, (3) subject to the terms of this Indenture, PIK Notes and (4) any Unrestricted Global Notes issued in exchange for any of the foregoing in accordance with this Indenture. Such order shall specify the amount of the Notes to be authenticated, the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes, Additional Notes or Unrestricted Global Notes.
Section 2.03 Registrar and Paying Agent.
(a)The Company shall maintain at least one office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and at least one office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes
(“Note Register”) and of their transfer and exchange. The Company may appoint one or more co- registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without prior notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
(b)The Company initially appoints DTC to act as Depositary with respect to the Global Notes. The Company initially appoints the Trustee to act as Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.
(c)The Company initially appoints the Units Trustee to act as custodian with respect to the Attached Notes.
(d)Neither the Trustee nor any Agent shall have responsibility or liability for actions taken or not taken by the Depositary.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall, no later than 11:00 a.m. (New York City time) on each due date for the payment of principal, premium, if any, and interest paid in cash on any of the Notes, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held in trust for the Holders entitled to the same, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal, premium, if any, and interest paid in cash on the Notes, and shall notify the Trustee of any default by the Company in making any such payment.
While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon payment over to the Trustee, and upon accounting for any funds disbursed, a Paying Agent shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders and shall otherwise comply with Trust Indenture Act Section 312(b). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders, and the Company shall otherwise comply with Trust Indenture Act Section 312(a).
Section 2.06 Transfer and Exchange.
(a)The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with Appendix A.
(b)To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request. (c)No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07), but the Holders shall be required to pay any transfer tax or similar governmental charge payable in connection therewith (other than any transfer taxes or similar governmental charges payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.15, 4.16 or 9.05).
(d)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(e)Neither the Company nor the Registrar shall be required (1) to issue, to register the transfer of or to exchange any Note during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (2) to register the transfer of or to exchange any Note so selected for redemption, or tendered for repurchase (and not withdrawn) in connection with a Change of Control Offer or an Asset Disposition Offer, in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part or (3) to register the transfer of or to exchange any Note between a Record Date and the next succeeding Interest Payment Date.
(f)Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and (subject to the Record Date provisions of the Notes) interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(g)Upon surrender for registration of transfer of any Note at the office or agency of the Company designated pursuant to Section 4.02, the Company shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(h)At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the replacement Global Notes or Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Appendix A so long as the requirements of this Indenture are satisfied.
(i)All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by mail or by facsimile or electronic transmission.
Section 2.07 Replacement Notes.
(a)If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken and the Trustee receives evidence to its satisfaction of the ownership and loss, destruction or theft of such Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s reasonable
requirements are otherwise met. If required by the Trustee or the Company, an indemnity bond must be provided by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge the Holder for the expenses of the Company and the Trustee (including reasonable respective fees and expenses of counsel) in replacing a Note. Every replacement Note is a contractual obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Notwithstanding the foregoing provisions of this Section 2.07(a), in case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note. Upon the issuance of any replacement Note under this Section 2.07, the Company may require the amount of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the reasonable fees and expenses of counsel and the Trustee) in connection therewith.
(b)The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
Section 2.08 Outstanding Notes.
(a)The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.07, those reductions in the interest in a Global Note or an Attached Note effected by the Trustee in accordance with the provisions hereof, those described in this Section 2.08 as not outstanding and those that are subject to Legal Defeasance or Covenant Defeasance as provided in Article 8. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.
(b)If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code in effect in the State of New York.
(c)If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue from and after the date of such payment. (d)If a Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on the maturity date, any redemption date or any date of purchase pursuant to an Offer to Purchase, money sufficient to pay Notes payable or to be redeemed or purchased on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the requisite principal amount of Notes have concurred in any direction, waiver or consent, Notes beneficially owned by the Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in actually relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Company or any obligor upon the Notes or any Affiliate of the Company or of such other obligor.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes. Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act). Evidence of the disposal of all cancelled Notes shall, upon the written request of the Company, be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
(a)If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Company shall notify the Trustee in writing (which notice may be electronic) of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Company of such special record date. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall send, mail or deliver by electronic transmission in accordance with the Applicable Procedures, or cause to be sent, mailed or delivered by electronic transmission in accordance with the Applicable Procedures to each Holder a notice that states the special record date, the related payment date and the amount of such interest to be paid. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine the defaulted interest, or with respect to the nature, extent or calculation of the amount of defaulted interest owed, or with respect to the method employed in such calculation of the defaulted interest.
(b)Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue interest, which were carried by such other Note.
Section 2.13 CUSIP and ISIN Numbers.
The Company in issuing the Notes may use CUSIP or ISIN numbers (if then generally in use) and, if so, the Trustee shall use CUSIP or ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange or in Offers to Purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange or Offer to Purchase shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing (which notice may be electronic) of any change in the CUSIP or ISIN numbers.
Section 2.14 Component of Units.
The Notes will trade together with the Warrants as a “unit security” (the “Units”) on the terms provided in the Unit Agreement until separated on or prior to April 1, 2024 on the terms set forth in the Unit Agreement. As such, the Notes and the Warrants will not be separately transferable until such date of separation. Any Permitted Equity Issuance Prepayment of the Notes (including any and all accrued PIK Interest on such Notes) prior to April 1, 2024 shall result in the immediate cancellation of the Warrants attached thereto, and any refinancing of Notes (including any and all accrued PIK Interest thereon) in connection with a Change of Control prior to April 1, 2024 shall result in the immediate cancellation of the Warrants attached thereto. In the event of any other repayment, repurchase, redemption or other retirement of the Notes, the Warrants shall not be cancelled and shall immediately detach and be freely transferable (subject to applicable securities laws) as provided in the Unit Agreement. On April 1, 2024, the Warrants shall detach automatically, without any action by the holders thereof, from the Notes and shall be separately transferable as of April 1, 2024 (subject to applicable securities laws) as provided in the Unit Agreement.
Section 2.15 Italian Usury Law
(a)The rate of interest applicable to each issuance of the Notes guaranteed by the Italian Guarantor under this Indenture (including the relevant component of any applicable fee and expense) determined as of the date of execution of this Indenture is considered in good faith by each of the parties to be in compliance with Law No. 108 of 7 March 1996 as amended (the "Italian Usury Law")
(b)In any event, if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest applicable to any issuance of the Notes guaranteed by the Italian Guarantor or the default rate of interest (if due at such time from the Italian Guarantor) at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the obligations of the Italian Guarantor, as guarantor and payor of the relevant interest rate or default rate, shall immediately be reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07, it shall furnish to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03 (unless a shorter notice shall be agreed to by the Trustee) but not
more than 60 days before a redemption date, an Officer’s Certificate (which may be withdrawn prior to the date such notice of redemption is given) setting forth (1) the paragraph or subparagraph of such Note or Section of this Indenture pursuant to which the redemption shall occur, (2) the redemption date, (3) the principal amount of the Notes to be redeemed and (4) the redemption price, if then ascertainable.
Notwithstanding the notice requirements in Section 3.03, if the redemption price is not known at the time such notice is to be given, the actual redemption price, calculated as described in the terms of the Notes to be redeemed, shall be set forth in an Officer’s Certificate of the Company delivered to the Trustee no later than two Business Days prior to the redemption date. Section 3.02 Selection of Notes to Be Redeemed or Purchased.
(a)If less than all of the Notes are to be redeemed pursuant to Section 3.07 or purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed or (2) if the Notes are not so listed, on a pro rata basis, by lot in accordance with the Applicable Procedures or by such other method as the Trustee in its sole discretion deems to be fair and appropriate. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the redemption date by the Trustee from the then outstanding Notes not previously called for redemption or purchase.
(b)The Trustee shall promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 and integral multiples of $1.00 in excess thereof; provided that no Notes of $2,000 in principal amount or less shall be redeemed or purchased in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
(c)After the redemption date or purchase date, upon surrender of a Note to be redeemed or purchased in part only, a new Note or Notes in principal amount equal to the unredeemed or unpurchased portion of the original Note, representing the same Indebtedness to the extent not redeemed or not purchased, shall be issued in the name of the Holder upon cancellation of the original Note (or appropriate book entries shall be made to reflect such partial redemption).
Section 3.03 Notice of Redemption.
(a)Subject to Section 3.10, the Company shall send or deliver by electronic transmission in accordance with the Applicable Procedures, or cause to be sent (or delivered by electronic transmission in accordance with the Applicable Procedures) notices of redemption of Notes not less than 15 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed pursuant to this Article 3 at such Holder’s registered address or otherwise in accordance with the Applicable Procedures, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with Article 8 or Article 12. Except as set forth in Section 3.07(f), notices of redemption may not be conditional. Notices to the Trustee may be given by email in PDF format.
(b)The notice shall identify the Notes to be redeemed (including CUSIP and ISIN number, if applicable) and shall state:
(1)the redemption date;
(2)the redemption price, including the portion thereof representing any accrued and unpaid interest; provided that in connection with a redemption under Section 3.07(d), the notice need not set forth the redemption price but only the manner of calculation;
(3)if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed;
(4)the name and address of the Paying Agent;
(5)that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(6)that, unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the redemption date;
(7)the paragraph or subparagraph of the Notes or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(8)that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(9)if applicable, any condition to such redemption.
(c)At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense; provided that the Company shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(b).
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is sent in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(f)). The notice, if sent in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
(a)No later than 11:00 a.m. (New York City time) on the redemption or purchase date (or such later time as such date to which the Trustee may reasonably agree), the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Holder of record on such Record Date. The Paying Agent shall promptly distribute to each Holder whose Notes are to be redeemed or repurchased the
applicable redemption or purchase price thereof and accrued and unpaid interest thereon. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
(b)If the Company complies with the provisions of Section 3.05(a), on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase whether or not such Notes are presented for payment, and the Holders of such Notes shall have no further rights with respect to such Notes except the right to receive such payment of the redemption price and accrued and unpaid interest, if any, on such Notes upon surrender of such Notes. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date in respect of such Note will be paid on such redemption or purchase date to the Person in whose name such Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders whose Notes shall be subject to redemption by the Company. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Company to comply with Section 3.05(a), interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and, to the extent lawful, on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender and cancellation of a Note that is redeemed or purchased in part, the Company shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate and mail to the Holder (or cause to be transferred by book entry) at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same Indebtedness to the extent not redeemed or purchased; provided that each new Note shall be in a principal amount of $2,000 and integral multiples of $1.00 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
Section 3.07 Optional Redemption.
(a)[reserved].
(b)[reserved].
(c)[reserved].
(d)The Company may, on any one or more occasions, redeem the Notes, in whole or in part, upon notice pursuant to Section 3.03 at the redemption price of 100% (expressed as a percentage of principal amount of the Notes to be redeemed) plus accrued and unpaid interest on the Notes, if any, to, but excluding, the applicable date of redemption.
(f)Any redemption notice in connection with this Section 3.07 may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of an Equity Offering or other corporate transaction. If such redemption is subject to satisfaction of one or more
conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed.
(g)The Company may acquire Notes by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.
Section 3.08 Mandatory Redemption.
The Company will not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09 [Reserved].
Section 3.10 Offers to Repurchase by Application of Excess Proceeds.
(a)In the event that, pursuant to Section 4.16, the Company is required to commence an Asset Disposition Offer, the Company will follow the procedures specified below.
(b)The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, any applicable Priority Secured Indebtedness and other Pari Passu Secured Indebtedness (on a pro rata basis, if applicable) required to be offered for purchase pursuant to Section 4.16 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount of Notes has been so validly tendered, all Notes and Priority Secured Indebtedness and Pari Passu Secured Indebtedness validly tendered in response to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments on the Notes are made.
(c)If the Asset Disposition Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest to, but excluding, the Asset Disposition Purchase Date shall be paid, in cash (irrespective of whether PIK Interest would otherwise have been payable on such Note), on the Asset Disposition Purchase Date to the Person in whose name a Note is registered at the close of business on such Record Date. Unless the Company defaults in the payment of the purchase price for Notes accepted by the Company for purchase pursuant to this Section 3.10, interest will cease to accrue on the Notes or portions thereof purchased on the Asset Disposition Purchase Date.
(d)Upon the commencement of an Asset Disposition Offer, the Company shall send a notice to each of the Holders or otherwise deliver such notice in accordance with the Applicable Procedures, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Disposition Offer. The Asset Disposition Offer shall be made to all Holders and, if required, all holders of Pari Passu Secured Indebtedness. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(10)that an Asset Disposition Offer is being made pursuant to this Section 3.10 and Section 4.16 and the expiration time of the Asset Disposition Offer Period;
(11)the Asset Disposition Offer Amount, the purchase price, including the portion thereof representing any accrued and unpaid interest, and the Asset Disposition Purchase Date;
(12)that Notes must be tendered in integral multiples of $1.00, and any Note not properly tendered will remain outstanding and will continue to accrue interest;
(13)that, unless the Company defaults in making the payment, any Note accepted for payment pursuant to the Asset Disposition Offer will cease to accrue interest on and after the Asset Disposition Purchase Date;
(14)that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to such Note completed, the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Disposition Purchase Date;
(15)that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives at the address specified in the notice, not later than the expiration of the Asset Disposition Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;
(16)that, if the aggregate principal amount of Notes and Pari Passu Secured Indebtedness surrendered by the holders thereof exceeds the Asset Disposition Offer Amount, then the Notes and such Pari Passu Secured Indebtedness will be purchased on a pro rata basis based on the aggregate accreted value or principal amount, as applicable, of the Notes or such Pari Passu Secured Indebtedness tendered and the selection of the Notes for purchase shall be made by the Trustee by such method as the Trustee in its sole discretion shall deem to be fair and appropriate, although no Note having a principal amount of $2,000 shall be purchased in part;
(17)that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) (the unpurchased portion of the Notes must be equal to $2,000 and integral multiples of $1.00 in excess thereof);
(18)the other procedures, as determined by the Company, consistent with this Section 3.10 that a Holder must follow; and
(19)the CUSIP and ISIN numbers of the Notes.
(e)On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary or as otherwise provided in Section 4.16(c), the Asset Disposition Offer Amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or, if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) so tendered, in the case of the Notes in integral multiples of $1.00; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note
outstanding immediately after such repurchase is $2,000. The Company will deliver, or cause to be delivered, to the Trustee the Notes so accepted and to the Trustee and the Paying Agent an Officer’s Certificate stating the aggregate principal amount of Notes so accepted and that such Notes were accepted for payment by the Company in accordance with the terms of this Section 3.10. In addition, the Company will deliver all certificates and instruments required, if any, by the agreements governing the Priority Secured Indebtedness and Pari Passu Secured Indebtedness, as applicable.
(f)The Paying Agent or the Company, as the case may be, will promptly, but in no event later than five Business Days after termination of the Asset Disposition Offer Period, mail (or otherwise send in accordance with the Applicable Procedures) to each tendering Holder or holder or lender of Priority Secured Indebtedness or Pari Passu Secured Indebtedness, as the case may be, an amount equal to the purchase price of the Notes or Priority Secured Indebtedness or Pari Passu Secured Indebtedness so validly tendered and not validly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Authentication Order from the Company, will authenticate and mail (or otherwise send in accordance with the Applicable Procedures) (or cause to be transferred by book entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate shall be required for the Trustee to authenticate and mail or send such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 and integral multiples of $1.00 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable). Any Note not so accepted will be promptly mailed or sent by the Company to the Holder thereof.
(g)The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Company will pay, or cause to be paid, the principal, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary, holds as of 11:00 a.m. (New York City) time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay the principal, premium, if any, and interest then due (or, in the case of a PIK Payment, by increasing the outstanding aggregate principal amount of such Notes or issuing PIK Notes in accordance with this Indenture and as provided in the Notes); provided that PIK Interest shall be deemed paid on the date due if, in accordance with the terms hereof and of the Notes, PIK Notes are issued or the principal amount of the Global Notes or
Attached Notes is increased in an amount equal to the amount of the applicable amount of interest for such Interest Period.
(b)The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue principal and premium, if any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post- petition interest in any proceeding under any Bankruptcy Laws) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company and the Guarantors in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate additional offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03. Section 4.03 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments and governmental levies except (a) such as are being contested in good faith and by appropriate negotiations or proceedings and for which adequate reserves have been made in accordance with GAAP or (b) where the failure to effect such payment is not adverse in any material respect to the Holders.
Section 4.04 Stay, Extension and Usury Laws.
The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenant that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.05 Corporate Existence.
Subject to Article 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence and the corporate, partnership, limited liability company or other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary and (b) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership, limited liability company, unlimited liability company or other existence of any of its Subsidiaries, if the Company in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole; provided further that this Section 4.05 does not prohibit any transaction otherwise permitted by Section 4.16 (or that does not constitute an Asset Disposition).
Section 4.06 Reports and Other Information.
(a)Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SEC, the Company will file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company (or if the Company is not then subject to the reporting requirements of the Exchange Act, then deliver to the Trustee for delivery to the Holders in lieu of filing with the SEC) within the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations) (in either case, including any extension as would be permitted by Rule 12b-25 under the Exchange Act):
(20)all financial information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(21)all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section; and
(22)all current reports that would be required to be filed with the SEC on Form 8-K, or any successor or comparable form, if the Company were required to file such reports,
in each case in a manner that complies in all material respects with the requirements specified in such form provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred.
(b)Notwithstanding Section 4.06(a), (i) the Company will not be obligated to file such reports with the SEC if the SEC does not permit such filing, so long as the Company provides such information to the Trustee and the Holders and makes available such information to prospective purchasers of the Notes, in each case at the Company’s expense and by the applicable date the Company would be required to file such information pursuant to Section 4.06(a) and (ii) the Company will not be obligated to provide to the Trustee or the Holders or make available to prospective purchasers of the Notes any materials for which it has sought and received confidential treatment by the SEC. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company will furnish to Holders and to securities analysts and prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in Sections 4.06(a) and 4.06(b) may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be
maintained by the Company or a third party) to which access will be given to Holders and prospective purchasers of the Notes; provided that the Trustee shall have no responsibility to determine if such posting has occurred. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(c)In addition, no later than five Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or (2), the Company shall also hold live quarterly conference calls with the opportunity to ask questions of management for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions (any such call, a “Bondholder Call”); provided that, so long as the Company holds quarterly conference calls for investors of its Common Stock, it shall not be required to hold separate or additional Bondholder Calls. If the Company holds any Bondholder Call, no fewer than five calendar days prior to the date such Bondholder Call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such Bondholder Call for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions, which press release shall contain the time and the date of such Bondholder Call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such Bondholder Call.
Section 4.07 Compliance Certificate.
(a)The Company and each Guarantor (to the extent that such Guarantor is so required under the Trust Indenture Act) will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Issue Date, a certificate from its principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company and each Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Company and each Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Company and each Guarantor are taking or propose to take with respect thereto).
(b)When any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Company will promptly (which shall be within ten Business Days following the date on which the Company becomes aware of such Default, receives notice of such Default or becomes aware of such action, as applicable) send to the Trustee an Officer’s Certificate specifying such event, its status and what action the Company is taking or proposes to take with respect thereof.
Section 4.08 Limitation on Restricted Payments.
(a)The Company will not, and will not permit any of its Subsidiaries, directly or
indirectly, to:
(23)declare or pay any dividend or make any distribution (whether made in cash, securities or other property) on or in respect of its or any of its Subsidiaries’ Capital Stock (including any payment in connection with any merger, amalgamation or consolidation involving the Company or any of its Subsidiaries) other than:
(A)dividends or distributions payable solely in Capital Stock of the Company (other than Disqualified Stock); and
(B)dividends or distributions by a Subsidiary to the Company or another Subsidiary (including by a Subsidiary that is not a Wholly Owned Subsidiary); provided that with respect to a dividend or distribution to either (a)a Subsidiary, the Capital Stock of which is not 100% pledged as Collateral, or (b) a Non-Guarantor Subsidiary, such transferee Subsidiary shall receive no more than such Subsidiary’s ratable share of such dividend or distribution;
(24)purchase, redeem, retire or otherwise acquire for value, including in connection with any merger, amalgamation or consolidation, any Capital Stock of the Company or any direct or indirect parent of the Company held by Persons other than the Company or a Subsidiary;
(25)make any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled repayment, scheduled sinking fund payment or scheduled maturity, any Subordinated Obligations or Guarantor Subordinated Obligations, other than:
(A)Indebtedness of the Company owing to and held by any Guarantor or Indebtedness of a Guarantor owing to and held by the Company or any other Guarantor permitted under clause (5) of Section 4.09(b); or
(B)the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations or Guarantor Subordinated Obligations of any Guarantor purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement; or
(26)make any Restricted Investment
(all such payments and other actions referred to in clauses (1) through (4) of this Section 4.08(a) (other than any exception thereto) shall be referred to as a “Restricted Payment”).
(27)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock or Disqualified Stock of the Company or Subordinated Obligations of the Company or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination);
(28)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of the Company or any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Guarantor Subordinated Obligations of any Guarantor made by exchange for or out of the proceeds of the substantially concurrent sale of Guarantor Subordinated Obligations of a Guarantor, so long as such refinancing Subordinated Obligations or Guarantor Subordinated Obligations are permitted to be Incurred pursuant to Section 4.09 and constitute Refinancing Indebtedness;
(29)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Stock of the Company or a Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Stock of the Company or such Subsidiary, as the case may be, so long as such refinancing Disqualified Stock is permitted to be Incurred pursuant to Section 4.09 and constitutes Refinancing Indebtedness;
(30)the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation or Guarantor Subordinated Obligation (A) at a purchase price not greater than 101% of the principal amount of such Subordinated Obligation or Guarantor Subordinated Obligation, as applicable, in the event of a Change of Control in accordance with provisions similar to Section 4.15 or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.16; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer;
(31)any purchase or redemption of Subordinated Obligations or Guarantor Subordinated Obligations from Net Available Cash to the extent permitted under Section 4.16; (32)dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this Section 4.08;
(33)the purchase, redemption or other acquisition (including by cancellation of Indebtedness), cancellation or retirement for value of Capital Stock or equity appreciation rights of the Company held by any future, present or former directors, Officers, employees, management or consultants or advisors of the Company or any Subsidiary of the Company or their assigns, estates, heirs, family members or former family members or any other permitted transferee, in each case in connection with the repurchase provisions under stock option or stock purchase agreements or other agreements to compensate such persons approved by the Board of Directors of the Company; provided that such redemptions or repurchases pursuant to this clause will not exceed $2.5 million in the aggregate during any fiscal year, with any unused amounts in any fiscal year being carried over to the succeeding fiscal year (the “Carryover Amount” and, for purposes of calculating the Carryover Amount for any fiscal year, the unused amounts from the prior fiscal year shall be deemed to have been utilized first by making any Restricted Payment pursuant to this clause (7) in such fiscal year), although such amount in any fiscal year may be increased by an amount not to exceed:
(A)the Net Cash Proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Company to future, existing or former employees, directors,
consultants or members of management of the Company or any of its Subsidiaries that occurs after the Issue Date; plus
(B)the cash proceeds of key man life insurance policies received by the Company or its Subsidiaries after the Issue Date; less
(C)the amount of any Restricted Payments made since the Issue Date with the Net Cash Proceeds described in clauses (A) and (B) of this clause (7);
provided, further, that the cancellation of Indebtedness owing to the Company from employees, directors, Officers or consultants or members of management of the Company or any of its Subsidiaries (including their permitted transferees) in connection with any repurchase of Capital Stock will not be deemed to constitute a Restricted Payment under this Indenture;
(34)the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company issued in accordance with the terms of this Indenture to the extent such dividends are included in the definition of “Consolidated Interest Expense”;
(35)repurchases of Capital Stock deemed to occur (A) upon the exercise, conversion or exchange of stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities if such Capital Stock represents all or portion of the exercise price thereof or (B) as a result of Capital Stock being utilized to satisfy tax withholding obligations upon (a) the exercise of stock options or (b) the vesting of other equity awards that constitute Capital Stock;
(36)any payment of cash in respect of fractional shares of the Company’s Capital Stock upon the exercise, conversion or exchange of any stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities of the Company;
(37)any repayments of Indebtedness (a) of the Company or any Guarantor owing to and held by the Company or any Guarantor or Indebtedness of a Non-Guarantor Subsidiary owing to and held by the Company or any other Subsidiary, and (b) owing to any Non-Guarantor Subsidiary in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany repayments to the Board of Directors of the Company; provided, further, that any intercompany repayments that exceed $10.0 million will only be permitted to the extent that the Company reports such repayments to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following the repayment that caused aggregate intercompany repayments to exceed
$10.0 million;
(38)any payments required to be made to former holders of Wincor Nixdorf Shares in connection with any appraisal proceeding (Spruchverfahren);
(39)[reserved];
(40)[reserved];
(41)Restricted Payments made pursuant to the Diebold, Incorporated 2014 Non-Qualified Stock Purchase Plan (or any successor thereto) in an aggregate amount (net of employee contributions) not to exceed $2.0 million in any fiscal year;
(42)the repurchase or redemption of the Company’s Capital Stock or rights to purchase such Capital Stock issued in connection with any future shareholder rights plan of the Company;
(43)Restricted Payments required to be made pursuant to the terms of the Domination Agreement;
(44)[reserved];
(45)Restricted Payments in connection with the China JV Restructuring; and
(46)other Restricted Payments (excluding non-cash Restricted Payments consisting of Collateral) in an aggregate amount, when taken together with all other Restricted Payments made pursuant to this clause (20) (as reduced by the amount of capital returned from any such Restricted Payments (exclusive of items reflected in Consolidated Net Income)) not to exceed $15.0 million (with the Fair Market Value of each Restricted Payment being measured at the time made and without giving effect to subsequent changes in value);
provided, however, that at the time of and after giving effect to, any Restricted Payment permitted under clauses (5), (8) and (20), no Default shall have occurred and be continuing or would occur as a consequence thereof.
(c)The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of such Restricted Payment (without giving effect to subsequent changes in value) of the assets or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to such Restricted Payment. The amount of any Restricted Payment paid in cash shall be its face amount.
(d)To the extent any cash or any other property is paid or distributed by the Company or any of its Subsidiaries upon the conversion or exchange of any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock of the Company or upon any other acquisition or retirement of any Indebtedness of the Company or any of its Subsidiaries for an amount based on the value of such Capital Stock, (1) any amount of such cash or property that exceeds the principal amount of the Indebtedness that is converted, exchanged, acquired or retired and any accrued interest paid thereon (and only such excess amount) shall be deemed to be a Restricted Payment and (2) the amount of such cash or property up to an amount equal to the principal amount of the Indebtedness that is converted, exchanged, acquired or retired shall be deemed to be a Restricted Payment if such Indebtedness is a Subordinated Obligation or Guarantor Subordinated Obligation. If the Company or any of its Subsidiaries repurchases any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock of the Company in the open market at a price in excess of the principal amount of such Indebtedness and any accrued and unpaid interest thereon, such excess amount shall be deemed to be a Restricted Payment.
(e)For the avoidance of doubt, the Company shall not, and shall not permit any Subsidiary to, make any principal payment on, or purchase, repurchase, redeem, defease, or otherwise acquire or retire for value, prior to the respective scheduled maturity, any Stub Obligations, except either
(a) with the cash proceeds of (x) Indebtedness that (A) is junior with respect to security (including by way of being unsecured) and payment priority to each of the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the Notes and (B) with respect to which Indebtedness interest may not be paid in cash and may only be paid in kind or (y) newly issued equity of or capital contributions in the Company, or (b) 2024 Notes in connection with the Follow-On Registered Exchange.
Section 4.09 Limitation on Indebtedness.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness).
(b)The provisions of Section 4.09(a) will not prohibit the Incurrence of the following Indebtedness:
(47)The Incurrence by the Company or its Guarantors of Indebtedness under the ABL Facility, the Guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount or liquidation preference, if applicable, not to exceed at any one time outstanding $250.0 million;
(48)Indebtedness of the Company represented by the Notes (including any Additional Notes issued in connection with the Follow-On Registered Exchange) and Indebtedness of any Guarantor represented by a Note Guarantee (including in respect of any such Additional Notes);
(49)Indebtedness of the Company and its Subsidiaries in existence on the Issue Date (other than Indebtedness described in clauses (1), (2), (4), (5), (6), (8), (10), (11), (15), (16), (19), (20) and (22) of this Section 4.09(b)); provided that any amounts of any such Indebtedness paid down in connection with any purchases, repurchases, redemptions or otherwise (other than in connection with a substantially concurrent refinancing by way of Refinancing Indebtedness) shall be reduced from any amount of Indebtedness Incurred under this clause (3) of this Section 4.09(b) that would otherwise be permitted to be Incurred using Refinancing Indebtedness;
(50)Guarantees by (A) the Company or Guarantors of (i) Indebtedness Incurred by the Company or a Guarantor on or before the Issue Date or (ii) Indebtedness of Non- Guarantor Subsidiaries subject to clause (3) of the definition of Permitted Investments; provided that in the event such Indebtedness that is being Guaranteed under this clause (A) is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, and
(B) Non-Guarantor Subsidiaries of Indebtedness Incurred by Non-Guarantor Subsidiaries in accordance with the provisions of this Indenture;
(51)Indebtedness (a) of the Company or any Guarantor owing to and held by the Company or any Subsidiary or Indebtedness of a Non-Guarantor Subsidiary owing to and held by the Company or any other Subsidiary; provided that any Indebtedness of the Company or a Guarantor owing to and held by any Non-Guarantor Subsidiaries shall be in an aggregate amount outstanding not to exceed $10.0 million at the time any such Indebtedness is Incurred, and (b) in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany Indebtedness to the Board of Directors of the Company; provided, further, that any intercompany Indebtedness that exceeds $10.0 million will only be permitted to the extent that the Company reports such Indebtedness to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following the Incurrence of Indebtedness that caused aggregate intercompany Indebtedness to exceed $10.0 million; provided, further, that:
(A)if the Company is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(B)if a Guarantor is the obligor on Indebtedness owing to a Non-Guarantor Subsidiary, such Indebtedness is expressly subordinated in right of payment to the Note Guarantee of such Guarantor; and
(C)(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Subsidiary of the Company; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Subsidiary of the Company,
shall be deemed, in each case under this clause (5)(C) of this Section 4.09(b), to constitute an Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(52)Preferred Stock of a Subsidiary held by the Company or any other Subsidiary; provided, however, that (A) any subsequent issuance or transfer of Capital Stock or any other event which results in such Preferred Stock being beneficially held by a Person other than the Company or a Subsidiary of the Company; and (B) any sale or other transfer of any such Preferred Stock to a Person other than the Company or a Subsidiary of the Company shall be deemed in each case under this clause (6) to constitute an Incurrence of such Preferred Stock by such Subsidiary;
(53)[reserved];
(54)Indebtedness under Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(55)Indebtedness (including Capitalized Lease Obligations) of the Company or a Subsidiary Incurred to finance the purchase, lease, construction or improvement of any property, plant or equipment used or to be used in the business of the Company or such Subsidiary through the direct purchase of such property, plant or equipment, and any Indebtedness of the Company or a Subsidiary which serves to refinance any Indebtedness Incurred pursuant to this clause (9) in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause
(9) and then outstanding, will not exceed $20.0 million;
(56)Indebtedness Incurred by the Company or its Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(57)Indebtedness (other than Indebtedness for borrowed money) arising from agreements of the Company or a Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets of the Company or any business, assets or Capital Stock of a Subsidiary;
(58)[reserved];
(59)the Incurrence by the Company or any Subsidiary of Refinancing Indebtedness that serves to refinance any Indebtedness Incurred as permitted under clauses (2) and (3) and this clause (13) of this Section 4.09(b); (60)[reserved];
(61)Indebtedness consisting of avals by any of the Company or its Subsidiaries for the benefit of, and with respect to obligations that are not classified as Indebtedness of, any of the Company or its Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices;
(62)Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(63)[reserved];
(64)[reserved];
(65)Indebtedness Incurred in the ordinary course of business in connection with cash pooling arrangements and cash management arrangements in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject to such arrangements;
(66)Indebtedness consisting of the financing of insurance premiums;
(67)[reserved];
(68)Indebtedness Incurred under Bi-lateral LC/WC Agreements in an aggregate principal amount outstanding at any one time not to exceed $55.0 million (such amount will be calculated exclusive of any bank guarantee or the like issued in connection with a
squeeze-out of any minority shareholders of Wincor Nixdorf (i) in accordance with Sec. 327b(3) of the German Stock Corporation Act (Aktiengesetz), (ii) in accordance with Sec. 62 of the German Transformation Act (Umwandlungsgesetz) in conjunction with 327b(3) of the German Stock Corporation Act (Aktiengesetz), (iii) in relation to a squeeze-out pursuant to 39a and 39b of the German Takeover Code (Wertpapiererwerbs- und Übernahmegesetz) or (iv) a delisting offer pursuant to Sec. 39(2) of the German Stock Exchange Act (Börsengesetz) or similar corporate restructurings)); and
(69)in addition to the items referred to in clauses (1) through (22) above, Indebtedness of the Company and its Subsidiaries in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (23) and then outstanding, will not exceed $50.0 million at any time outstanding.
(c)The Company will not Incur any Indebtedness under Section 4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the
Company unless such Indebtedness will be subordinated to the Notes to at least the same extent as such Subordinated Obligations. No Guarantor will Incur any Indebtedness under Section 4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Guarantor Subordinated Obligations of such Guarantor unless such Indebtedness will be subordinated to the obligations of such Guarantor under its Note Guarantee to at least the same extent as such Guarantor Subordinated Obligations. No Subsidiary (other than a Guarantor) may Incur any Indebtedness if such Indebtedness is used, directly or indirectly, to refinance Indebtedness of the Company or a Guarantor.
(d)For purposes of determining compliance with this Section 4.09:
(70)in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 4.09(b), the Company, in its sole discretion, will classify such item of Indebtedness on the date of Incurrence and may later reclassify such item of Indebtedness in any manner that complies with Section 4.09(b) and will be entitled to divide the amount and type of such Indebtedness among more than one of the clauses of Section 4.09(b);
(71)if obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Indebtedness, then such letters of credit shall be treated as Incurred pursuant to such Debt Facility and such other Indebtedness shall not be included; and
(72)except as provided in clause (2) of this Section 4.09(d), Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included.
(e)Accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.09.
(f)For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may Incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(g)For purposes of this Indenture, no Indebtedness will be deemed to be contractually subordinated or junior in right of payment to any other Indebtedness solely by virtue of (1) being unsecured or (2) its having a junior priority with respect to the same collateral.
Section 4.10 Limitation on Liens.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, Incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or assets (including Capital Stock of Subsidiaries), or income or profits therefrom, or assign or convey any right to receive income therefrom, whether owned on the Issue Date or acquired after that date, which Lien is securing any Indebtedness.
(b)In addition, if the Company or any Guarantor, directly or indirectly, creates, Incurs, assumes or suffers to exist any Lien (other than customary Liens on cash collateral in connection with the ABL Facility) securing any funded Indebtedness, a representative of which is required to become a party to an applicable Intercreditor Agreement, the Company or such Guarantor, as the case may be, must concurrently grant a Lien (subject to Permitted Liens) upon such property as security for the Notes and the Note Guarantees, with the Lien upon such property being of the same priority as the other Liens on the Collateral securing the Notes (in accordance with the Lien priorities in any applicable Intercreditor Agreement).
Section 4.11 Future Guarantors.
(a)The Company will cause (i) each Non-Guarantor Subsidiary (other than an Excluded Subsidiary) that, on the Issue Date or any time thereafter, becomes a borrower or Guarantees the Obligations under any of the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2024 Notes or the 2025 Notes and (ii) each Non-Guarantor Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary) domiciled or organized in the United States or any Specified Jurisdiction that, on the Issue Date or any time thereafter, Guarantees any other Indebtedness for borrowed money of (a) the Company or any Guarantor or (b) any Non-Guarantor Subsidiary (and with respect to sub-clause (ii)(b), only to the extent such Indebtedness exceeds $10.0 million), to promptly execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture to this Indenture, the form of which is attached hereto as Exhibit C, pursuant to which such Subsidiary will irrevocably and unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest (including additional interest, if any) in respect of the Notes on a senior basis and all other Obligations under this Indenture, in each case, subject to the Collateral and Guarantee Requirements.
(b)Each Subsidiary that becomes a Guarantor on or after the Issue Date will also become a party to the applicable Collateral Documents and the applicable Intercreditor Agreements and will as promptly as practicable execute and deliver such joinder documents, security instruments, and financing statements, and, with respect to any Material Real Property located in the United States, Mortgages, opinions of counsel, surveys and title insurance policies as required under Section 11.06, under this Indenture and Collateral Documents to the extent, and substantially in the form, delivered on the Issue Date or, if later, on the date first delivered (but no greater scope) as may be necessary to vest in the Notes Collateral Agent a perfected security interest with the priority described in any applicable Intercreditor Agreement, in each case, subject to no Liens other than Permitted Liens and otherwise in the manner and to the extent set forth in the Collateral Documents and this Indenture and, subject to the terms of the applicable Intercreditor Agreements, in the properties and assets of such new Guarantor constituting Collateral as security for the Notes or the Note Guarantees, and thereupon all provisions of this Indenture and the applicable Intercreditor Agreements relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.
(c)At each time of distribution of annual or quarterly financial information pursuant to clauses (1) or (2) of Section 4.06(a), the Company shall calculate the total assets and total revenues of all Immaterial Subsidiaries of the Company. In the event that the total assets or total revenues of all
Immaterial Subsidiaries of the Company that Guarantee any Indebtedness of the Company or any Guarantor for borrowed money (other than Priority Secured Indebtedness or Pari Passu Secured Indebtedness) would exceed 10.0% of the total assets or total revenues (after intercompany eliminations) of the Company and its Subsidiaries, in each case determined in accordance with GAAP and as shown on the Company’s consolidated balance sheet as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available and its consolidated statement of operations for the period of the most recent four consecutive fiscal quarters ending on such balance sheet date, the Company shall, within 30 days of the date of distribution of such financial information, cause one or more Immaterial Subsidiaries of the Company that Guarantee any Indebtedness of the Company or any Guarantor for borrowed money to provide Note Guarantees as and to the extent required to cause the total assets and total revenues of all Immaterial Subsidiaries of the Company not to exceed 10.0% of the total assets or total revenues (after intercompany eliminations) of the Company and its Subsidiaries, in each case, subject to the Collateral and Guarantee Requirements.
(d)The obligations of each Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any Guarantees of the Priority Secured Indebtedness or Pari Passu Secured Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution Obligations under this Indenture, result in the Obligations of such Guarantor under its Note Guarantee not constituting a preference, fraudulent conveyance or fraudulent transfer under federal or state law or any applicable foreign law.
(e)Each Note Guarantee of a Guarantor shall be released in accordance with the provisions of Section 10.06.
Section 4.12 Limitation on Restrictions on Distribution From Subsidiaries.
(a)The Company will not, and will not permit any Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Subsidiary to:
(73)pay dividends or make any other distributions on its Capital Stock to the Company or any of its Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(74)make any loans or advances to the Company or any Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Subsidiary to other Indebtedness Incurred by the Company or any Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(75)sell, lease or transfer any of its property or assets to the Company or any Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.12(a)). (b)The provisions of Section 4.12(a) will not prohibit encumbrances or restrictions existing under or by reason of:
(76)contractual encumbrances or restrictions pursuant to the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures and the 2025 Notes and related Guarantees, the 2024 Notes Indenture and the 2024 Notes and related Guarantees, the 2023 Credit Facility and related documentation and other agreements or instruments in effect at or entered into on the Issue Date;
(77)this Indenture, the Notes, the Note Guarantees, the Collateral Documents, and the Intercreditor Agreements;
(78)any agreement or other instrument of a Person acquired by the Company or any of its Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property);
(79)any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2) or (3) of this Section 4.12(b) or this clause (4) of this Section 4.12(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith determination of the Company, taken as a whole, no more restrictive with respect to encumbrances and restrictions of the nature described in clauses (1), (2) and (3) of Section 4.12(a) contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.12(b) on the Issue Date, the date such Subsidiary became a Subsidiary or was merged into, or amalgamated or consolidated with a Subsidiary, whichever is applicable;
(80)in the case of clause (3) of Section 4.12(a), Liens permitted to be Incurred under Section 4.10 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(81)purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.12(a) on the property so acquired;
(82)contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary;
(83)restrictions on cash or other deposits or net worth imposed by customers, suppliers, lessors or landlords or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
(84)any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Subsidiary in the ordinary course of business and consistent with past practices;
(85)restrictions on cash or other deposits to secure the performance of bids, trade contracts, tenders, government contracts, leases, statutory obligations, surety, stay, custom, performance and appeal bonds or other obligations of a like nature (including standby letters of credit or completion guarantees), in each case in the ordinary course of business;
(86)encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(87)any customary provisions in partnership agreements, limited liability company agreements, joint venture agreements, other similar agreements and related governance documents entered into in the ordinary course of business;
(88)to the extent required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary of which less than 90% of the Voting Stock is owned by the Company or any of its Subsidiaries; and
(89)other Indebtedness Incurred or Preferred Stock issued by a Subsidiary permitted to be Incurred pursuant to the provisions of Section 4.09 that, in the good faith determination of the Company, are not more restrictive with respect to encumbrances and restrictions of the nature described in clauses (1), (2) and (3) of Section 4.12(a), taken as a whole, than those applicable to the Company under this Indenture, the Notes, the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2024 Notes and the 2024 Notes Indenture, or the 2025 Notes and the 2025 Notes Indentures on the Issue Date (which results in encumbrances or restrictions at a Subsidiary level comparable to those applicable to the Company).
Section 4.13 [Reserved].
Section 4.14 Transactions with Affiliates.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or asset or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving an aggregate consideration in excess of $5.0 million, unless:
(90)the terms of such Affiliate Transaction are not materially less favorable to the Company or such Subsidiary, as the case may be, than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person that is not an Affiliate;
(91)in the event such Affiliate Transaction involves an aggregate consideration in excess of $30.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) of this Section 4.14(a)); and
(92)in the event such Affiliate Transaction involves an aggregate consideration in excess of $50.0 million, the Company has received a written opinion from an Independent Financial Advisor stating that such Affiliate Transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(93)any transaction among Non-Guarantor Subsidiaries and Non-Borrower Subsidiaries and any Guarantees issued by any Non-Guarantor Subsidiary for the benefit of any Non-Guarantor Subsidiary, as the case may be, in accordance with Section 4.09; (94)Restricted Payments permitted to be made pursuant to Section 4.08 or Permitted Investments, provided that any Investment made in a Non-Guarantor Subsidiary shall be made on commercially reasonable terms; (95)issuances or sales of Capital Stock (other than Disqualified Stock) of the Company in connection with any contribution to the capital of the Company;
(96)any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or as the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of Officers and employees approved by the Board of Directors of the Company;
(97)the payment of reasonable and customary fees and reimbursed expenses paid to, and indemnity provided on behalf of, directors of the Company or any Subsidiary;
(98)loans or advances to employees, Officers, directors or consultants of the Company or any Subsidiary in the ordinary course of business consistent with past practices;
(99)any transaction with a Person that would constitute an Affiliate Transaction solely because the Company or a Subsidiary owns Capital Stock in or otherwise controls such Person;
(100)any agreement as in effect as of the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such amendment, modification, supplement, extension or renewal is not more disadvantageous to the Holders in any material respect in the good faith judgment of the Board of Directors of the Company, when taken as a whole, than the terms of the agreements in effect on the Issue Date;
(101)any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into, or amalgamated or consolidated with, the Company or a Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition, amalgamation, consolidation or merger, and any amendment thereto, so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of the Board of Directors of the Company when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition, amalgamation, consolidation or merger;
(102)transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Company, such transactions are on terms that are no less favorable to the Company or the relevant Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Company or such Subsidiary with an unrelated Person;
(103)any grant, issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith; and
(104)transactions in which the Company or any Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a)If a Change of Control occurs, the Company will make an offer to purchase all of the Notes (the “Change of Control Offer”) at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (the “Change of Control Payment”), subject to the right of Holders of record on a Record Date to receive any interest due on the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Company has exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company will mail a notice of such Change of Control Offer to each Holder or otherwise send such notice in accordance with the Applicable Procedures, with a copy to the Trustee, stating:
(105)that a Change of Control Offer is being made pursuant to this Section 4.15, the expiration time for such Change of Control Offer (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise sent in accordance with the Applicable Procedures) and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Company at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the applicable Record Date to receive interest due on the Change of Control Payment Date);
(106)the purchase date (which shall be no later than five Business Days after the date such Change of Control Offer expires) (the “Change of Control Payment Date”);
(107)if such notice is delivered prior to the occurrence of a Change of Control, that the Change of Control Offer is conditioned upon the occurrence of such Change of Control and setting forth a brief description of the definitive agreement for the Change of Control;
(108)that Notes must be tendered in integral multiples of $1.00, and any Note not properly tendered will remain outstanding and continue to accrue interest;
(109)that, unless the Company defaults in the payment of the Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date;
(110)that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” attached to such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(111)that Holders shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives at the address specified in the notice, not later than the of such Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(112)that, if a Holder is tendering less than all of its Notes, such Holder will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) (the unpurchased portion of the Notes must be equal to $2,000 and integral multiples of $1.00 in excess thereof); and
(113)the other procedures, as determined by the Company, consistent with this Section 4.15 that a Holder must follow in order to have its Notes repurchased. The notice, if mailed or otherwise delivered in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (A) the notice is mailed or otherwise delivered in a manner herein provided and (B) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect.
(b)On the Change of Control Payment Date, the Company will, to the extent lawful:
(114)accept for payment all Notes or portions of Notes (in integral multiples of $1.00) validly tendered and not validly withdrawn pursuant to the Change of Control Offer provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000;
(115)deposit with the Paying Agent (or, if the Company or any Subsidiary is acting as Paying Agent, segregate and hold in trust) an amount sufficient to make the Change of Control Payment in respect of all Notes or portions of Notes so validly tendered and not validly withdrawn; and
(116)deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(c)The Paying Agent will promptly mail (or otherwise send in accordance with the Applicable Procedures) to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or otherwise send in accordance with the Applicable Procedures) (or cause to be transferred by book-entry) to each Holder a new Note (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate will be required for the Trustee to authenticate and mail or send such new Note) equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $2,000 and integral multiples of $1.00 in excess thereof.
(d)If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest to, but excluding, the Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in
whose name a Note is registered at the close of business on such record date. Unless the Company defaults in the payment of the Change of Control Payment, interest will cease to accrue on the Notes or portions thereof purchased on the Change of Control Payment Date.
(e)The Company will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer or (2) the Company has exercised its right to redeem all of the Notes in accordance with Section 3.07. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time such Change of Control Offer is made.
(f)The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of the conflict.
(g)If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 4.15(e), purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party will have the right, upon not less than 30 days’ nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to such Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.
(i)Notwithstanding the foregoing, the Company will not be permitted to make a Change of Control Offer unless (i) it has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes, or (ii) if any Obligations under such facilities have not been so repaid, only to the extent the Change of Control Offer is made using amounts offered to holders of such Obligations, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders. For the avoidance of doubt, any Warrants attached to the Notes as of the date of consummation of any Notes pursuant to a Change of Control Offer shall be cancelled.
Section 4.16 Asset Dispositions.
(a)The Company will not, and will not permit any of its Subsidiaries to, cause or make any Asset Disposition unless:
(117)the Company or such Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(118)100% of the consideration from such Asset Disposition received by the Company or such Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (and with respect to any securities, notes or other obligations received by the Company or any Subsidiary from the transferee that are Cash Equivalents, only to the extent such instruments are converted by the Company or such Subsidiary into cash (to the extent of the cash received)) within 180 days following the closing of such Asset Disposition; and
(119)to the extent that any consideration received by the Company or any Subsidiary in such Asset Disposition constitutes securities or other assets that are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes and the Note Guarantees, as applicable, being of the same priority with respect to the Notes and the Note Guarantees, as applicable, as the Lien on the assets disposed of in the Asset Disposition.
(b)Any Net Available Cash from (a) any transaction or series of related transactions constituting an Asset Disposition in excess of $25.0 million and (b) any transactions (other than those referred to in (a)) involving the sale of assets within the most recent four consecutive fiscal quarters ending prior to any date of determination for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (to be calculated at the end of each fiscal quarter, with respect to such quarter and the prior three fiscal quarters), which transactions in aggregate are in excess of $25.0 million for such four quarter period, shall constitute “Asset Disposition Proceeds”. Within five Business Days from (i) the date the Company or any of its Subsidiaries receives Asset Disposition Proceeds or (ii) the delivery of the most recent such financial statements (solely in connection with (b) above), as applicable (such date, the “Proceeds Trigger Date”) an amount equal to 100% of the Asset Disposition Proceeds shall be applied by the Company or such Subsidiary, as the case may be, as follows:
(120)if any of the assets disposed of in the Asset Disposition were ABL Priority Collateral, to reduce (and to, if required, permanently reduce commitments with respect thereto) (i) ABL Priority Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) and, (ii), solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub-clause (i), Priority Secured Indebtedness (and if such Priority Secured Indebtedness being reduced is revolving credit Indebtedness, to permanently reduce commitments with respect thereto) Incurred under the Superpriority Credit Facility and, (iii) solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub-clauses (i) and (ii), to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) other Priority Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the 2025 Credit Facility or the 2025 Notes, to the extent required by the ABL Facility and/or such other Priority Secured Indebtedness;
(121)if any of the assets disposed of in the Asset Disposition do not constitute ABL Priority Collateral, to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) (i) Priority Secured Indebtedness (other than any Priority Secured Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the Superpriority Credit Facility; and, (ii) solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub- clause (i), Priority Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the 2025 Credit Facility or the 2025
Notes, to the extent required by the Superpriority Credit Facility and/or such other Priority Secured Indebtedness;
(122)solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to Section 4.16(b)(1) and (2), reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) solely if required by its terms or applicable law, Pari Passu Secured Indebtedness (other than any Pari Passu Secured Indebtedness owed to or held by the Company or any Affiliate of the Company) or Indebtedness of a Non-Guarantor Subsidiary; provided that if the Company elects to repay any Pari Passu Secured Indebtedness other than the Notes, the Company may (A) equally and ratably reduce Obligations under the Notes pursuant to Section 3.07 or through open market purchases at or above 100% of the principal amount thereof or (B) make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes on a ratable basis with such Pari Passu Secured Indebtedness at 100% of the principal amount thereof, in each case plus the amount of accrued but unpaid interest on the Notes that are purchased or redeemed; provided, further, and notwithstanding the foregoing, the Company will not be permitted to repay the Notes or any other Pari Passu Secured Indebtedness unless (i) it has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility, and the 2025 Notes or, (ii) if any Obligations under such facilities have not been so repaid, only to the extent the repayment of any Notes or any such Pari Passu Secured Indebtedness is made using amounts previously offered to holders of such Priority Secured Indebtedness, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders;
(123)in the case of an Asset Disposition by a Non-Guarantor Subsidiary, to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) Indebtedness of (A) such Non-Guarantor Subsidiary (other than Indebtedness owed to the Company or a Guarantor) or (B) the Company or a Guarantor, in each case solely to the extent required by the terms of the Priority Secured Indebtedness or to the extent required by applicable local law or the terms of Indebtedness of any such Non-Guarantor Subsidiary;
(124)to maintain, develop, construct, improve, upgrade, or repair assets, or replace disposed-of-assets (in each case, other than current assets), used or useful in such entity’s business or to replace assets sold in such Asset Disposition; provided that, to the extent that any newly acquired assets are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes and the Note Guarantees, as applicable, being of the same priority with respect to the Notes and the Note Guarantees, as applicable, as the Lien on the assets disposed of in the Asset Disposition; or
(125)any combination of the foregoing;
provided that pending the final application of any such Net Available Cash in accordance with clause (1), (2), (3), (4), (5) or (6) of this Section 4.16(b), the Company and its Subsidiaries may temporarily reduce Indebtedness (including under the ABL Facility or a revolving Debt Facility) or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of clause (5) of this Section 4.16(b) (including as part of clause (6) of this Section 4.16(b)), any such expenditures must be made within 90 days of the Proceeds Trigger Date.
(c)Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.16(b) shall be deemed to constitute “Excess Proceeds.” On the 91st day after a Proceeds Trigger Date, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders and, to the extent required by the terms of any outstanding Priority Secured Indebtedness or Pari Passu Secured Indebtedness, to all holders of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness, to purchase the maximum aggregate principal amount of Notes and any such Priority Secured Indebtedness or such Pari Passu Secured Indebtedness, as the case may be, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on a Record Date to receive interest due on the Asset Disposition Purchase Date), in accordance with the procedures set forth in Section 3.10 or the agreements governing the Priority Secured Indebtedness or the Pari Passu Secured Indebtedness, as applicable, in the case of the Notes in integral multiples of $1.00; provided that, notwithstanding the foregoing, the Company will not be permitted to make an Asset Disposition Offer to any Holders or with respect to any other Pari Passu Secured Indebtedness unless (i) it has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes or (ii) if any Obligations under such facilities have not been so repaid, only to the extent the Asset Disposition Offer is made using amounts offered to holders of such Priority Secured Indebtedness, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders; provided, further, that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000. The Company shall commence an Asset Disposition Offer with respect to Excess Proceeds by mailing (or otherwise communicating in accordance with the Applicable Procedures) the notice required by Section 3.10, with a copy to the Trustee.
(d)To the extent that the aggregate amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds to reduce any Indebtedness and for other general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Priority Secured Indebtedness (and such Pari Passu Secured Indebtedness, as applicable) to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of tendered Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) (provided that the selection of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness shall be made pursuant to the terms of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness), as applicable). Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.17 Effectiveness of Covenants.
(a)Following the first day (such date, a “Suspension Date”):
(126)the Notes have an Investment Grade Rating from both of the Rating
Agencies; and
(127)no Default has occurred and is continuing under this Indenture,
the Company and its Subsidiaries will not be subject to the provisions of Section 3.10 and 4.16 (but, in each case, only with respect to any Asset Disposition of assets that are not or not required to be Collateral), 4.08, 4.09, 4.12, 4.14 and 5.01(a)(4) (collectively, the “Suspended Covenants”).
(b)If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default occurs and is continuing, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain an Investment Grade Rating from both of the Rating Agencies and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating from both of the Rating Agencies and no Default or Event of Default is in existence); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the Suspension Date and the Reinstatement Date is referred to as the “Suspension Period.” In addition, during any Suspension Period, the amount of Excess Proceeds shall be reset at zero.
(c)On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period will be classified to have been Incurred pursuant to one of the clauses set forth in Section 4.09(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reinstatement Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reinstatement Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 4.09(b), such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified under clause (3) of Section 4.09(b). Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.08(a) will be made as though Section 4.08(a) had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.08(a).
(d)Promptly following the occurrence of any Suspension Date or Reinstatement Date, the Company will provide an Officer’s Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Suspension Date or Reinstatement Date has occurred or notify the Holders of any Suspension Date or Reinstatement Date.
Section 4.18 [Reserved].
Section 4.19 Additional Amounts.
(a)All payments by any or each of the Company and the Guarantors in respect of the Notes or any Note Guarantee shall be made free and clear of and without any withholding or deduction for or on account of any present or future Taxes (as defined below), unless the withholding or deduction of such Taxes is required by law or the official interpretation thereof, or by the administration thereof. If the Company or any Guarantor shall be required by any Non-U.S. Taxing Jurisdiction (as defined below) to withhold or deduct any Taxes from or in respect of any sum payable or treated as payable under the Notes or any Note Guarantee (including, for the avoidance of doubt, any such Taxes arising by reason of the separation of the Warrants being treated as a payment with respect to the Notes in such jurisdiction), it will (i) pay such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts receivable by beneficial owners of any Notes after such withholding or deduction equal the
respective amounts which would have been receivable by such beneficial owners in the absence of such withholding or deduction, (ii) make such withholding or deduction, and (iii) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts will be payable in respect of any Note:
(128)to the extent that such Taxes are imposed or levied by reason of the Holder (or the beneficial owner) having some connection with the Non-U.S. Taxing Jurisdiction other than the mere holding (or beneficial ownership) of such Note or receiving principal or interest payments on the Note or enforcing rights with respect to the Notes (including but not limited to citizenship, nationality, residence, domicile, or existence of a business, permanent establishment, a dependent agent, a place of business or a place of management present or deemed present in the Non-U.S. Taxing Jurisdiction);
(129)to the extent that any Tax is imposed other than by deduction or withholding from payments of principal of or premium, if any, or interest on the Notes;
(130)to the extent that any Tax would not have been imposed but for the failure of the Holder (or beneficial owner) to comply with any certification, identification or other reporting requirement concerning its nationality, residence, identity or connection with the Non-
U.S. Taxing Jurisdiction if (i) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or part of the Tax, and (ii) the Company, any applicable Guarantor or the Trustee, as the case may be, has given the Holders (or beneficial owners) at least 30 days prior notice that they will be required to comply with such requirement;
(131)to the extent that any Tax would not have been imposed but for the failure of the Holder to surrender (where surrender is required) the Note for payment within 30 days after the Company or the applicable Guarantor, as the case may be, has made available a payment of principal or interest, provided that the Company or such Guarantor, as the case may be, will pay Additional Amounts to which a Holder would have been entitled had the Note been surrendered on the last day of such 30-day period;
(132)to the extent that such Taxes are imposed by reason of an estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, assessments or other governmental charges;
(133)to the extent that such Taxes could have been avoided if the Holder of Notes had presented the relevant Note (where presentation is required) to another Paying Agent in a member state of the European Union;
(134)to the extent that such Taxes arise pursuant to section 50a para. 7 of the German Income Tax Act (Einkommensteuergesetz – EstG)
(135)to the extent such Tax is imposed by France on a payment made to a Holder solely because (i) the Holder is incorporated, domiciled or established in, or acting through an office situated in, a non-cooperative state or territory (État ou territoire non coopératif) as set out in the lists referred to in Article 238-0 A of the French tax code, as such lists may be amended from time to time (a “Non-Cooperative Jurisdiction”) or (ii) this payment is made to an account opened in the name of or for the benefit of that Holder of Notes or in a financial institution situated in a Non-Cooperative Jurisdiction; or
(136)any combination of items (1) through (8) above.
(b)Notwithstanding the foregoing, no Additional Amounts will be paid (1) to a Holder that is a fiduciary or a partnership or not the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder, (2) with respect to any Dutch Taxes withheld or deducted pursuant to the Dutch Withholding Tax Act (Wet bronbelasting 2021), as in effect on November 28, 2022, in respect of interest payments made (or deemed to be made) to “affiliated entities” (within the meaning of the Dutch Withholding Tax Act (Wet bronbelasting 2021)) or (3) with respect to any withholding or deduction that is imposed in connection with Sections 1471-1474 of the Code and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing FATCA or any law, regulation or official guidance enacted or issued in any jurisdiction with respect thereto.
“Taxes” means all taxes, withholdings, duties, assessments or governmental charges of whatever nature (including any penalties, interest and other liabilities relating thereto) imposed or levied by or on behalf of the jurisdiction of incorporation or tax residency of the Company or any applicable Guarantor or the jurisdiction of incorporation or tax residency of any successor entity to the Company or any such Guarantor, or the jurisdictions of any Paying Agents, or any other jurisdiction through which payment is made, in each case other than the United States, or, in each case, any political subdivision thereof or any authority or agency therein or thereof having power to tax (each, a “Non-U.S. Taxing Jurisdiction”).
(c)At least 10 days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 10th day prior to such date, in which case it shall be promptly thereafter), if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, it will deliver to the Trustee and the Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. The Company or any Guarantor, as applicable, will provide the Paying Agent with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, other reasonable documentation) evidencing any payment of any Taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such documentation will be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(d)The Company and each Guarantor will also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) which arise in any jurisdiction from the execution, delivery, registration, enforcement or the making of payments in respect of the Notes or its Note Guarantee, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not either (i) the United States (or a political subdivision thereof) or (ii) a Non-U.S. Taxing Jurisdiction, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes or its Note Guarantee following the occurrence of any Default or Event of Default.
(e)All references in this Indenture to principal of and premium, if any, and interest on the Notes will include any Additional Amounts payable by the Company or any Guarantor in respect of such principal, premium, if any, and interest, and express mention of the payment of Additional Amounts, if applicable, will not be construed as excluding Additional Amounts where such express mention is not made.
Section 4.20 Collateral and Guarantee Requirements
(a)The Company, each Note Party and each Subsidiary of the Company not constituting an Excluded Subsidiary shall have satisfied the Collateral and Guarantee Requirements by or on the Issue Date; provided that to the extent that the Collateral and Guarantee Requirements (other than the execution of the Collateral Documents, delivery of Uniform Commercial Code or PPSA financing statements with respect to perfection of security interests in all assets of the Note Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA of any applicable jurisdiction, delivery of intellectual property security agreements in form for filing with the USPTO, USCO and the Canadian Intellectual Property Office and the delivery of possessory collateral) cannot be satisfied by or on the Issue Date and are not satisfied as of the Issue Date after the Company has used commercially reasonable efforts to do so, such unsatisfied requirements shall be required to be satisfied as promptly as practicable after the Issue Date and in any event within the period specified therefor in Appendix D.
(b)The Company shall have delivered to the Notes Collateral Agent on the Issue Date, (i) a completed Perfection Certificate dated as of the Issue Date and signed by an Officer of each of the Company and each Note Party, together with all attachments contemplated thereby and (ii) results of
(x)searches of the Uniform Commercial Code filings (or equivalent filings, including PPSA filings) and
(y)bankruptcy, judgment, tax and intellectual property lien searches requested by the Trustee, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Trustee that the Liens indicated by such financing statements (or other documents) are permitted by hereunder or have been or will be released in connection with the issuance of the Notes on the Issue Date.
(c)Subject to clauses (a) and (b) above, each document (including any UCC, PPSA (or similar) financing statement and intellectual property security agreements and, with respect to any Collateral Document governed by French law, certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Guarantor whose shares are pledged) required by any Collateral Document or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of the Notes Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Document (unless such Collateral Document provides for any such requirement to be provided at a later point in time), shall be in proper form for filing, registration or recordation and the Trustee have made arrangements for such filing, registration or recordation.
ARTICLE 5 SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets.
(a)The Company will not consolidate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person unless:
(137)the resulting, surviving or transferee Person shall be the Company;
(138)to the extent any assets of the Person who is merged, consolidated or amalgamated with or into the Company are assets of the type that would constitute Collateral under the Collateral Documents, the Company will take such action as may be reasonably
necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Indenture or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents;
(139)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(140)immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A)the Company would be in compliance with the Pro Forma Test Conditions; or
(B)the Consolidated Coverage Ratio of the Company and its Subsidiaries would be equal to or greater than such ratio for the Company and its Subsidiaries immediately prior to such transaction;
(141)each Guarantor (unless it is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) shall apply) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to the Company’s obligations under this Indenture, the Notes, the Collateral Documents and the Intercreditor Agreements; and
(142)the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding up or disposition, and such supplemental indenture and any other supplemental agreements comply with this Indenture.
(b)Notwithstanding clause (4) of Section 5.01(a), to the extent that the Company is the surviving Person:
(143)the Company may consolidate with, merge with or into or transfer all or part of its properties and assets to any Subsidiary, and any Subsidiary may consolidate with, merge with or into or transfer all or part of its properties and assets to the Company, so long as no Capital Stock of the Subsidiary is distributed to any Person other than the Company; provided that, in the case of a Subsidiary that merges into the Company, the Company will not be required to comply with Section 5.01(a)(6); and
(144)the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state of the United States or the District of Columbia, so long as the amount of Indebtedness of the Company and its Subsidiaries is not increased thereby.
(c)The Company shall not permit any Guarantor to consolidate with, amalgamate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Company or another Guarantor) unless:
(145)(A) if such entity remains a Guarantor, the resulting, surviving, continuing or transferee Person (if not such Guarantor) shall expressly assume, by a supplemental indenture hereto and the applicable Collateral Documents in a form reasonably satisfactory to the
Trustee and/or the Notes Collateral Agent, as applicable, all the obligations of such Guarantor under its Guarantee;
(B)to the extent any assets of the Person who is merged, consolidated or amalgamated with or into the successor Guarantor are assets of the type that would constitute Collateral under the Collateral Documents, the successor Guarantor will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Indenture or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents;
(C)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(D)the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, winding-up or disposition and such supplemental indenture and any other supplemental agreements comply with this Indenture; or
(146)in the event the transaction results in the release of the Guarantor’s Note Guarantee under clause (1)(A) of Section 10.06(a), the transaction is made in compliance with Section 4.16 (it being understood that only such portion of the Net Available Cash as is required to be applied on the date of such transaction in accordance with the terms of this Indenture needs to be applied in accordance therewith at such time).
(d)For purposes of this Section 5.01, the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company or a Guarantor, as the case may be, which properties and assets, if held by the Company or such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company or such Guarantor on a consolidated basis, will be deemed to be the disposition of all or substantially all of the properties and assets of the Company or such Guarantor, as applicable.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(147)default in any payment of interest on any Note when due, continued for
30 days;
(148)default in the payment of principal or premium, if any, on any Note when
due at its Stated Maturity, upon mandatory or optional redemption, upon required repurchase, upon declaration or otherwise;
(149)failure by the Company or any Guarantor to comply with its obligations under Section 5.01;
(150)failure by the Company or any Guarantor to comply for 30 days after notice as provided below with any of their obligations under Article 4 (in each case, other than (A)a failure to purchase Notes, which constitutes an Event of Default under Section 6.01(a)(2),
(151)failure by the Company or any Guarantor to comply for 60 days (or, in the case of a failure to comply with Section 4.06, 120 days) after notice as provided below with its other agreements contained in this Indenture or the Notes;
(152)default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Subsidiaries), other than Indebtedness owed to the Company or a Subsidiary, whether such Indebtedness or Guarantee now exists or is created after the Issue Date, which default:
(A)is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness; or
(B)results in the acceleration of such Indebtedness prior to its maturity;
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $75.0 million or more;
(153)failure by the Company or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $75.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days or more after such judgment becomes final;
(154)(i) the Company or a Significant Subsidiary or any group of Subsidiaries (excluding any Immaterial Subsidiaries) that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Laws:
(A)commences proceedings to be adjudicated bankrupt or insolvent;
(B)consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking an arrangement of debt, reorganization, dissolution, winding up or relief under applicable Bankruptcy Laws; provided that any of the foregoing actions shall not constitute a Default if this would constitute a breach of section 44 of the German Act on the Stabilisation and Restructuring Framework for Business (StaRUG);
(C)consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor sequestrator, administrator or other similar official of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors; or
(E)generally is not paying its debts as they become due;
(ii)a court of competent jurisdiction enters an order or decree under any Bankruptcy Laws that:
(A)is for relief against the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, in a proceeding in which the Company, any such Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(B)appoints a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor, sequestrator, administrator or other similar official of the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property of the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary; or
(C)orders the liquidation, dissolution or winding up of the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(1)any Note Guarantee of a Significant Subsidiary or any group of Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared null and void in a judicial proceeding or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary denies or disaffirms its obligations under this Indenture or its Note Guarantee; or
(2)with respect to any Collateral having a Fair Market Value in excess of
$50.0 million, individually or in the aggregate, (A) the security interest under the Collateral Documents, at any time, ceases to be a valid and perfected Lien (perfected as or having the priority required by the Collateral Documents and this Indenture) and in full force and effect for any reason other than in accordance with their terms and the terms of this Indenture and such failure continues for 60 days and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations or the application thereof, or from the failure of the Notes Collateral Agent (or, as applicable, the (i) Controlling Senior Representative (as defined in the ABL Intercreditor Agreement), (ii) First Priority
Representative (as defined in the Multi Lien Intercreditor Agreement), (iii) Designated First Priority Representative (as deinfed in the Non-Released Multi Lien Intercreditor Agreement, (iv) Controlling Agent (as defined in the First Lien Pari Passu Intercreditor Agreement) or (v) Controlling Agent (as defined in the Junior Lien Pari Passu Intercreditor Agreement)) to maintain possession of certificates or instruments actually delivered to it representing securities pledged under the Collateral Documents or (B) the Company or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary asserts, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable and such Person fails to rescind such assertion within 60 days.
However, a Default under clauses (4) and (5) of this Section 6.01(a) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes notify the Company of the Default and the Company does not cure such Default within the time specified in clauses (4) and (5) of this Section 6.01(a) after receipt of such notice.
(b)In the event of a declaration of acceleration of the Notes because an Event of Default described in clause (6) of Section 6.01(a) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if: (3)the default triggering such Event of Default pursuant to clause (6) of Section 6.01(a) shall be remedied or cured by the Company or a Subsidiary or waived by the holders of the relevant Indebtedness within 20 days after the declaration of acceleration with respect thereto; and
(4)(A) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (B) all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
Section 6.02 Acceleration.
(a)If an Event of Default (other than an Event of Default described in clause (8) of Section 6.01(a)) occurs and is continuing, the Trustee by written notice to the Company, specifying the Event of Default, or the Holders of at least 25% in principal amount of the then outstanding Notes by written notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable immediately. Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately.
(b)Notwithstanding the foregoing, in case an Event of Default under clause (8) of Section 6.01(a) occurs and is continuing, the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
(c)The Holders of a majority in principal amount of the outstanding Notes may waive all past defaults (except with respect to nonpayment of principal, premium or interest) and rescind any such acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, other than the nonpayment of the principal, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived.
(d)WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN THE EVENT THE NOTES ARE ACCELERATED OR OTHERWISE BECOME DUE AND PAYABLE PRIOR TO OCTOBER 15, 2026 AS A RESULT OF AN EVENT OF DEFAULT, THE APPLICABLE PREMIUM WILL ALSO BE DUE AND PAYABLE AND SHALL CONSTITUTE PART OF THE OBLIGATIONS UNDER THE NOTES, IN VIEW OF THE IMPRACTICABILITY AND EXTREME DIFFICULTY OF ASCERTAINING ACTUAL DAMAGES AND BY MUTUAL AGREEMENT OF THE PARTIES AS TO A REASONABLE CALCULATION OF EACH HOLDER’S LOST PROFITS AS A RESULT THEREOF. ANY PREMIUM (INCLUDING THE APPLICABLE PREMIUM) PAYABLE ABOVE SHALL BE THE LIQUIDATED DAMAGES SUSTAINED BY EACH HOLDER AS THE RESULT OF THE EARLY REDEMPTION AND THE COMPANY AGREES THAT IT IS REASONABLE UNDER THE CIRCUMSTANCES CURRENTLY EXISTING. THE PREMIUM (INCLUDING THE APPLICABLE PREMIUM) SHALL ALSO BE PAYABLE IN THE EVENT THE NOTES (AND/OR THIS INDENTURE) ARE SATISFIED OR RELEASED BY FORECLOSURE (WHETHER BY POWER OF JUDICIAL PROCEEDING), DEED IN LIEU OF FORECLOSURE, EXERCISE OF REMEDIES AND/OR SALE OF COLLATERAL FOLLOWING EVENTS OF DEFAULT OR ANY SALE OF COLLATERAL IN AN INSOLVENCY PROCEEDING, ANY RESTRUCTURING, REORGANIZATION OR COMPROMISE OF THE OBLIGATIONS UNDER THE NOTES OR OTHER OBLIGATIONS UNDER THIS INDENTURE OR ANY OTHER TERMINATION OF THIS INDENTURE OR NOTES AS A RESULT OF ANY SUCH EVENTS.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in principal amount of the outstanding Notes by written notice to the Trustee may on behalf of all Holders waive any existing Default and its consequences hereunder, except:
(1)a continuing Default in the payment of the principal, premium, if any, or interest on any Note held by a non-consenting Holder (including in connection with an Asset Disposition Offer or a Change of Control Offer); and
(2)a Default with respect to a provision that under Section 9.02 cannot be amended without the consent of each Holder affected,
provided that, subject to Section 6.02, the Holders of a majority in principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Subject to the terms of the applicable Intercreditor Agreements, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the Notes Collateral Agent. However, the Trustee and the Notes Collateral Agent, as the case may be, may refuse to follow any direction that conflicts with law, this Indenture, the Notes, any Note Guarantee, the Collateral Documents and the applicable Intercreditor Agreements, or that the Trustee or the Notes Collateral Agent determines in good faith is unduly prejudicial to the rights of any other Holder or that would, in its or its counsel’s opinion, lead the Trustee or the Notes Collateral Agent to expend its own funds or expose it to liability (financial or otherwise). For the avoidance of doubt, the Trustee and the Notes Collateral Agent may refrain from acting in accordance with any instructions of Holders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in this Indenture and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
Section 6.06 Limitation on Suits.
Subject to Section 6.07, no Holder may pursue any remedy with respect to this Indenture or the Notes (subject to the Intercreditor Agreements) unless:
(1)such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2)the Holders of at least 25% in principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;
(3)such Holders have offered the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(4)the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5)the Holders of a majority in principal amount of the then outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company and any other obligor on the Notes for the whole amount of principal, premium, if any, and interest remaining unpaid on the Notes, together with interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent and their agents and counsel.
Section 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Company, the Guarantors, the Trustee, the Notes Collateral Agent and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy are, to the extent permitted by law, cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
The Trustee may file proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Notes Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes, including the Guarantors), its creditors or its property and is entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other securities or property payable or deliverable on any such claims. Any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee or Notes Collateral Agent and its agents and counsel, and any other amounts due the Trustee
or Notes Collateral Agent under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel, and any other amounts due the Trustee or the Notes Collateral Agent under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.13 Priorities.
Subject to the terms of the Collateral Documents and the Intercreditor Agreements with respect to any proceeds of Collateral, if the Trustee collects any money or property pursuant to this Article 6, pursuant to the foreclosure or other remedial provisions contained in the Collateral Documents or the Intercreditor Agreements or any money or other property distributable in respect of any Guarantor’s Guaranteed Obligations under this Indenture after an Event of Default, it shall pay out the money and property in the following order:
(1)to the Trustee and the Notes Collateral Agent, their agents and attorneys for amounts due under Section 7.07, including payment of all compensation, reasonable expenses and liabilities incurred, and all advances made, by the Trustee and to the Notes Collateral Agent for the costs and expenses incurred under the Collateral Documents and the Intercreditor Agreements;
(2)to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(3)to the Company or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.13. Promptly after any record date is set pursuant to this Section 6.13, the Trustee shall cause notice of such record date and payment date to be given to the Company and to each Holder in the manner set forth in Section 13.02.
Section 6.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in aggregate principal amount of the outstanding Notes.
ARTICLE 7
TRUSTEE AND COLLATERAL AGENT
Section 7.01 Duties of Trustee and Notes Collateral Agent.
(a)If an Event of Default has occurred and is continuing, each of the Trustee and the Notes Collateral Agent shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. Upon the occurrence of (x) an Event of Default, (y) a Termination Event (as defined in the Unit Agreement attached hereto as Exhibit D) or (z) a Prohibited Event Unit Split Date (as defined in the Unit Agreement), the Trustee shall promptly notify the trustee under the Unit Agreement of (i) such Event of Default (and any waiver thereof, or related acceleration of the Notes (or rescission of such acceleration)) by way of providing a notice thereof in the form of Exhibit I, (ii) such Termination Event by way of providing a notice thereof in the form of Exhibit G, or (iii) such Prohibited Event Unit Split Date by way of providing a notice thereof in the form of Exhibit H.
(b)With respect to the Trustee, except during the continuance of an Event of Default, and at all times with respect to the Notes Collateral Agent:
(5)the duties of the Trustee and the Notes Collateral Agent shall be determined solely by the express provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and the Notes Collateral Agent need perform only those duties that are specifically set forth in this Indenture, the Collateral Documents and the Intercreditor Agreements and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee and the Notes Collateral Agent; and
(6)in the absence of bad faith on its part, the Trustee and the Notes Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and the Notes Collateral Agent and conforming to the requirements of this Indenture, the Collateral Documents and the Intercreditor Agreements. However, in the case of any such certificates or opinions which by any provision hereof or the Collateral Documents or the Intercreditor Agreements are specifically required to be furnished to the Trustee or the Notes Collateral Agent, as applicable, the Trustee or the Notes Collateral Agent, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)Neither the Trustee nor the Notes Collateral Agent may be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1)
this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2)neither the Trustee nor the Notes Collateral Agent shall be liable for any
error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved in a court of competent jurisdiction that the Trustee or the Notes Collateral Agent was negligent in ascertaining the pertinent facts;
(3)neither the Trustee nor the Notes Collateral Agent shall be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and (4)no provision of this Indenture shall require the Trustee or the Notes Collateral Agent to expend or risk its own funds or otherwise incur any liability (financial or otherwise) in the performance of any of its duties hereunder and the Trustee and Notes Collateral Agent shall not be required to take any action that, in their opinion or the opinion of its counsel, may be contrary to any Note Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Laws.
(d)Whether or not therein expressly so provided, every provision of this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable, that in any way relates to the Trustee or the Notes Collateral Agent is subject to paragraphs (a), (b) and (c) of this Section 7.01. (e)Neither the Trustee nor the Notes Collateral Agent shall (i) have any duty to take any discretionary action or to exercise any discretionary power, or (ii) be under any obligation to exercise any of the rights or powers under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements at the request or direction of any of the Holders unless such Holders have offered to the Trustee or the Notes Collateral Agent, as applicable, security or indemnity reasonably satisfactory to the Trustee or the Notes Collateral Agent (as applicable) against any loss, liability or expense (which may be greater in extent than that contained in the applicable Note Document and which may include payment in advance).
(f)Neither the Trustee nor the Notes Collateral Agent shall be liable for interest on any money received by it except as the Trustee or the Notes Collateral Agent may agree in writing with the Company. Money held in trust by the Trustee or the Notes Collateral Agent need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee and Notes Collateral Agent.
(a)Each of the Trustee and the Notes Collateral Agent may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. Neither the Trustee nor the Notes Collateral Agent need investigate any fact or matter stated in the document, but the Trustee and the Notes Collateral Agent, as applicable, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee or the Notes Collateral Agent, as applicable, shall determine in good faith to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b)Before the Trustee or the Notes Collateral Agent acts or refrains from acting, it may (but is not obliged to) require an Officer’s Certificate or an Opinion of Counsel or both subject to the other provisions of this Indenture. Neither the Trustee nor the Notes Collateral Agent shall be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee and the Notes Collateral Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)Each of the Trustee and the Notes Collateral Agent may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d)Neither the Trustee nor the Notes Collateral Agent shall be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture, the Collateral Documents or the Intercreditor Agreements.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or a Guarantor shall be sufficient if signed by an Officer of the Company or such Guarantor.
(f)Neither the Trustee nor the Notes Collateral Agent shall be deemed to have notice or knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee or the Notes Collateral Agent, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee or the Notes Collateral Agent, as applicable, at the Corporate Trust Office of the Trustee or the Notes Collateral Agent, as applicable, and such notice references the existence of a Default or Event of Default, the Notes and this Indenture.
(g)In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee or the Notes Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The rights, privileges, protections, immunities and benefits given to each of the Trustee and the Notes Collateral Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, each of the Trustee and the Notes Collateral Agent in each of its capacities hereunder and under the Collateral Documents and the Intercreditor Agreements, and by, the Agents and each other agent, custodian and other Person employed to act hereunder or thereunder.
(i)Neither the Trustee nor the Notes Collateral Agent shall at any time be under any duty or responsibility to any Holders to determine whether any Additional Amounts are payable and the amount thereof.
(j)The Trustee and the Notes Collateral Agent may request that the Company deliver an Officer’s Certificate setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, the Collateral Documents and the Intercreditor Agreements, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(k)Neither the Trustee nor the Notes Collateral Agent shall be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(l)Neither the Trustee nor the Notes Collateral Agent:
(7)shall be accountable for the use or application by any Person of disbursements properly made by the Trustee or the Notes Collateral Agent in conformity with the provisions of this Indenture, the Notes or the Collateral Documents or of moneys received from the Company or the Guarantors; or
(8)shall be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(m)The Notes Collateral Agent shall not be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other security documents pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other security document pertaining to this matter.
(n)Beyond the exercise of reasonable care in the custody thereof, the Notes Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against any prior parties or any other rights pertaining thereto and the Notes Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
Section 7.03 Individual Rights of Trustee and Notes Collateral Agent.
The Trustee or the Notes Collateral Agent in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee or the Notes Collateral Agent.
However, in the event that the Trustee acquires a conflicting interest within the meaning of Trust Indenture Act Section 310(b) it must eliminate such conflict within 90 days, apply to the SEC for permission to continue as trustee (if this Indenture has been qualified under the Trust Indenture Act) or resign. Any Agent may do the same with like rights and duties or resign. The Trustee is also subject to Section 7.10 and Section 7.11.
Section 7.04 Disclaimer.
Neither the Trustee nor the Notes Collateral Agent shall be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreements, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or the Notes Collateral Agent, as the case may be, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication on the Notes.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee will mail or deliver by electronic transmission to each Holder a notice of the Default within 90 days after it occurs. Except in the case of an Event of Default specified in clauses (1)
or (2) of Section 6.01(a), the Trustee may withhold from the Holders notice of any continuing Default if the Trustee determines in good faith that withholding the notice is in the interests of the Holders.
Section 7.06 Reports by Trustee to Holders of the Notes.
(a)Within 60 days after each April 15, beginning with April 15, 2023 and for so long as Notes remain outstanding, the Trustee shall mail to the Holders of the Notes a brief report dated as of such reporting date that complies with Trust Indenture Act Section 313(a) (but if no event described in Trust Indenture Act Section 313(a) has occurred within the twelve months preceding the reporting date, no report need be transmitted). The Trustee also shall comply with Trust Indenture Act Section 313(b)(2). The Trustee shall also transmit by mail all reports as required by Trust Indenture Act Section 313(c).
(b)A copy of each report at the time of its mailing to the Holders shall be mailed to the Company and filed with the SEC and each national securities exchange on which the Notes are listed in accordance with Trust Indenture Act Section 313(d). The Company shall promptly notify the Trustee in writing in the event the Notes are listed on any national securities exchange or delisted therefrom.
Section 7.07 Compensation and Indemnity.
(a)The Company and the Guarantors, jointly and severally, shall pay to the Trustee and the Notes Collateral Agent from time to time such compensation for its acceptance of this Indenture and services hereunder and under the Collateral Documents and the Intercreditor Agreements as the parties shall agree in writing from time to time. Neither the Trustee’s nor the Notes Collateral Agent’s compensation shall be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee and the Notes Collateral Agent promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and the Notes Collateral Agent’s agents and respective counsel (as well as any notarial fees relating to the granting of any Spanish Public Document and registration fees, if any). The Trustee and the Notes Collateral Agent shall provide the Company reasonable notice of any expenditure not in the ordinary course of business.
(b)The Company and the Guarantors, jointly and severally, shall indemnify each of the Trustee, any predecessor Trustee, the Notes Collateral Agent and any predecessor Notes Collateral Agent and their agents for, and hold the Trustee and the Notes Collateral Agent harmless against, any and all loss, damage, claims, liability or expense (including reasonable attorneys’ fees and expenses and taxes (other than taxes based upon, measured by or determined by the income of the Trustee and the Notes Collateral Agent)) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder and under the Collateral Documents and the Intercreditor Agreements (including the reasonable costs and expenses of enforcing this Indenture, the Collateral Documents and the Intercreditor Agreements against the Company or any Guarantor (including this Section 7.07 and notarial fees relating to any Spanish Public Document, court clerk fees (procurador) (even if their intervention is not mandatory), court costs and any sworn translation costs and together with any applicable VAT)) or defending itself against any claim whether asserted by any Holder, the Company or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). Each of the Trustee and the Notes Collateral Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Notes Collateral Agent to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee and the Notes Collateral Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the
Trustee or the Notes Collateral Agent through the Trustee’s or the Notes Collateral Agent’s own willful misconduct or gross negligence.
(c)The obligations of the Company and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee or the Notes Collateral Agent.
(d)To secure the payment obligations of the Company and the Guarantors in this Section 7.07, the Trustee and the Notes Collateral Agent shall have a Lien prior to the Notes on all money or property held or collected by the Trustee and the Notes Collateral Agent, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
(e)When the Trustee and the Notes Collateral Agent incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(8) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Laws.
(f)The Trustee will comply with the provisions of Trust Indenture Act Section 313(b)(2) to the extent applicable.
Section 7.08 Appointment of the Notes Collateral Agent.
(a)Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder), (i) pursuant to Article 2414-bis, third paragraph, of the Italian Civil Code, to the extent applicable, shall be deemed to have agreed and acknowledged the appointment of the Notes Collateral Agent and accepts and is bound by the appointment of the Notes Collateral Agent, to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil Code, to the extent applicable, and, in any event, as mandatario con rappresentanza also pursuant to articles 1704 and 1723, second paragraph of the Italian Civil Code, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, and (ii) consented and agreed to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure and release of the Collateral and authorising the Notes Collateral Agent to enter into any Collateral Document on its behalf) as the same may be in effect or may be amended from time to time in accordance with its terms and authorises and directs the Notes Collateral Agent to enter into the Collateral Documents and to perform its obligations and exercise its rights thereunder in accordance therewith.
(b)The Trustee (acting on behalf and for the benefit of the Holders) hereby irrevocably and unconditionally appoints GLAS Americas LLC as Notes Collateral Agent (agent des sûretés), pursuant to articles 2488-6 to 2488-12 of the French Civil Code, in respect of the French Collateral Documents and the Collateral governed by French law in order to take, register, manage and enforce the Collateral created or purported to be created under the French Collateral Documents. As a result:
(9)the Notes Collateral Agent shall be the title owner (titulaire) of the guarantees and Collateral created or purported to be created under this Indenture and the rights and assets acquired by the Notes Collateral Agent in carrying out its functions shall form a dedicated estate, distinct from the Notes Collateral Agent’s own estate;
(10)in respect of the French Collateral Documents and the Collateral governed by French law, the Notes Collateral Agent shall act in its own name for the benefit of the Trustee (acting for the benefit of the Holders); and
(11)the Notes Collateral Agent shall identify itself as such when acting in
such capacity.
(c)The Notes Collateral Agent shall act in accordance with the powers given to it by law and by the Non-ABL Agreements. If at any time, the Notes Collateral Agent is required to take any action in respect of the French Collateral Documents and the Collateral governed by French law (i) which is outside the scope of the powers granted to it by law or (ii) at a time when its appointment under
Section 7.08(b) is terminated as a result of a pledge enforcement, then the Notes Collateral Agent shall act as agent (mandataire) of each relevant secured party (as mandant).
(d)The Notes Collateral Agent hereby accepts the appointments under Sections 7.08(b) and (c).
(e)The Notes Collateral Agent shall solely act in its capacity as Notes Collateral Agent or for itself (as secured party).
(f)Any change of Notes Collateral Agent appointed pursuant to this Section 7.08 shall be made in accordance with Section 7.08 or in accordance with article 2488-11 of the French Civil Code (remplacement judiciaire).
(g)The Trustee (acting on behalf and for the benefit of the Holders):
(12)confirms its approval of the French Collateral Documents and Collateral governed by French law and irrevocably authorizes, empowers and directs the Notes Collateral Agent to execute the French Collateral Documents and to take any steps, and gather any information, in connection with the preparation of the French Collateral Documents and the perfection, preservation and/or enforcement of the Collateral;
(13)irrevocably authorises, empowers and directs the Notes Collateral Agent to perform the duties and exercise the rights, powers and discretions that are specifically entrusted to it under the Non-ABL Agreements, together with any other rights, powers and discretions which are incidental thereto, and to give a good discharge for any moneys payable under the French Collateral Documents; and
(14)acknowledges and confirms that the Notes Collateral Agent is entitled to take any step to protect the interests of the Secured Parties; however, notwithstanding the provisions of article 2488-9 of the French Civil Code, the Notes Collateral Agent shall not be bound to make the filing of any proof of claim for the benefit of the Trustee (acting on behalf and for the benefit of the Holders), unless otherwise agreed between the Notes Collateral Agent and the Trustee.
(h)Notwithstanding any contrary provision in this agreement, or any other Non- ABL Agreements:
(15)the Notes Collateral Agent shall not hold the benefit of the French Collateral Documents on trust but as agent des sûretés;
(16)no French Guarantor shall undertake to pay any Parallel Debt and the French Collateral Documents shall not secure any Parallel Debt; and
(17)no appointment of additional collateral agent or delegation of powers by the Notes Collateral Agent shall be made in respect of the French Collateral Documents for those
rights and duties which benefit to or are imposed on the Notes Collateral Agent by operation of articles 2488-6 to 2488-12 of the French Civil Code.
(i)The subscription or the acquisition of any Notes by any Holder shall constitute acceptance by such Holder of the appointment of the Notes Collateral Agent for French Law Collateral Documents under the Notes in accordance with the terms of such Section 7.08
Section 7.09 Replacement of Trustee or Notes Collateral Agent.
(a)A resignation or removal of the Trustee or the Notes Collateral Agent and appointment of a successor Trustee or a successor Notes Collateral Agent shall become effective only upon the successor Trustee’s or successor Notes Collateral Agent’s acceptance of appointment as provided in this Section 7.08. The Trustee or the Notes Collateral Agent may resign in writing at any time by giving 30 days’ prior notice of such resignation to the Company and be discharged from the trust hereby created by so notifying the Company in writing. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee or the Notes Collateral Agent by so notifying the Trustee, the Notes Collateral Agent and the Company in writing. The Company may remove the Trustee or the Notes Collateral Agent if:
(18)in the case of the Trustee, the Trustee fails to comply with Section 7.11;
(19)the Trustee or the Notes Collateral Agent, as the case may be, is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Laws;
(20)a receiver or public officer takes charge of the Trustee or the Notes Collateral Agent, as the case may be, or its property; or
(21)the Trustee or the Notes Collateral Agent becomes incapable of acting as Trustee or Notes Collateral Agent, respectively, hereunder.
(b)If the Trustee or the Notes Collateral Agent resigns or is removed or if a vacancy exists in the office of Trustee or the Notes Collateral Agent for any reason, the Company shall promptly appoint a successor Trustee or a successor Notes Collateral Agent, as the case may be. Within one year after the successor Trustee or successor Notes Collateral Agent takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the successor Trustee or the successor Notes Collateral Agent to replace it with another successor Trustee or another successor Notes Collateral Agent appointed by the Company.
(c)If a successor Trustee or a successor Notes Collateral Agent does not take office within 30 days after the retiring Trustee or retiring Notes Collateral Agent resigns or is removed, the retiring Trustee or retiring Notes Collateral Agent (at the Company’s expense), the Company or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or successor Notes Collateral Agent, as the case may be.
(d)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(e)A successor Trustee or successor Notes Collateral Agent shall deliver a written acceptance of its appointment to the retiring Trustee or retiring Notes Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Trustee or retiring Notes Collateral Agent shall become effective, and the successor Trustee or successor Notes Collateral Agent shall have all the rights, powers and duties of the Trustee or the Notes Collateral Agent under this Indenture. The successor Trustee or successor Notes Collateral Agent shall mail a notice of its succession to Holders. The retiring Trustee or retiring Notes Collateral Agent shall promptly transfer all property held by it as Trustee or Notes Collateral Agent to the successor Trustee or successor Notes Collateral Agent; provided that all sums owing to the Trustee or the Notes Collateral Agent hereunder have been paid and such transfer shall be subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee or the Notes Collateral Agent pursuant to this Section 7.09, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee or retiring Notes Collateral Agent.
(f)As used in this Section 7.08, the term “Trustee” shall also include each Agent. Section 7.10 Successor by Merger, etc. If the Trustee or the Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the successor corporation or national banking association without any further act shall be the successor Trustee or successor Notes Collateral Agent, subject to Section 7.10.
Section 7.11 Eligibility; Disqualification.
(a)There shall at all times be a Trustee hereunder that is a corporation or national banking association organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition.
(b)This Indenture shall always have a Trustee who satisfies the requirements of Trust Indenture Act Sections 310(a)(1), (2) and (5). The Trustee is subject to Trust Indenture Act Section 310(b).
Section 7.12 Preferential Collection of Claims Against the Company.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b). A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
Section 7.13 Collateral Documents; Intercreditor Agreements.
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and the Notes Collateral Agent, as the case may be, to execute and deliver each of the Collateral Documents and each Intercreditor Agreement (including joinder agreements thereto) and any other Collateral Documents in which the Trustee and/or the Notes Collateral Agent, as applicable, is named as a party, including any Intercreditor Agreement or Collateral Documents executed on or after the Issue Date and any amendments, joinders or supplements to any Intercreditor Agreement or Collateral Document permitted by this Indenture (expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of this Indenture, the Note Guarantees or any other document related thereto, all the above
with express faculties of self-contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación))). It is hereby acknowledged and agreed that, in so doing, the Trustee and the Notes Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under the Intercreditor Agreements or any other Collateral Documents, the Trustee and the Notes Collateral Agent each shall have all of the rights, privileges, benefits, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
The Holders shall, if so requested by the Trustee in relation to any eventual enforcement of any Spanish Collateral Document, (i) grant a power of attorney in favor of the Trustee entitling it to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Collateral Document and (ii) notarize and apostille such power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain).
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have either Section 8.02 or Section 8.03 applied to all outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this Article 8.
Section 8.02 Legal Defeasance and Discharge.
(a)Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to this Indenture, all outstanding Notes and Note Guarantees on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (1) and (2) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Guarantors (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(22)the rights of Holders to receive payments in respect of the principal, premium, if any, and interest on the Notes when such payments are due, solely out of the trust created pursuant to this Indenture referred to in Section 8.04;
(23)the Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for Note payments held in trust;
(24)the rights, powers, trusts, duties and immunities of the Trustee, and the Company’s obligations in connection therewith; and
(b)Following the Company’s exercise of its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.
(c)If the Company exercises its Legal Defeasance option under this Section 8.02, the Liens on the Collateral will be released and the Note Guarantees in effect at such time will be automatically released.
(d)Subject to compliance with this Article 8, the Company may exercise its Legal Defeasance option under this Section 8.02 notwithstanding the prior exercise of its Covenant Defeasance option under Section 8.03.
Section 8.03 Covenant Defeasance.
(a)Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their respective obligations under the covenants contained in Sections 3.10, 4.03, 4.05, 4.06, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, and 4.17 and 5.01(a)(4) with
respect to the outstanding Notes, and the Guarantors shall be deemed to have been discharged from their obligations with respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.04 are satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(a)(3) that resulted solely from the failure of the Company to comply with Section 5.01(a)(4), Section 6.01(a)(4) (only with respect to covenants that are released as a result of such Covenant Defeasance), Section 6.01(a)(5) (only with respect to covenants that are released as a result of such Covenant Defeasance), 6.01(a)(6), 6.01(a)(7), 6.01(a)(8) (solely with respect to Significant Subsidiaries or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries) would constitute a Significant Subsidiary), 6.01(a)(9) and 6.01(a)(10), in each case, shall not constitute an Event of Default.
(b)If the Company exercises its Covenant Defeasance option under this Section 8.03, the Liens on the Collateral will be released and the Note Guarantees in effect at such time will be automatically released.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)The following shall be the conditions to the exercise of either the Legal Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the Notes:
(26)the Company must irrevocably deposit with the Paying Agent, in trust, for the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination thereof, in amounts as will be sufficient without consideration of any reinvestment of interest, to pay the principal, premium, if any, and interest, if any, due on the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(27)in the case of Legal Defeasance, the Company has delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions,
(A)the Company has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling, or
(B)since the Issue Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders and beneficial owners of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(28)in the case of Covenant Defeasance, the Company has delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(29)no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) and the deposit will not result in a breach or violation of, or constitute a default under, the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures, the 2023 Credit Facility, the 2024 Notes Indenture or any other material agreement or material instrument (other than this Indenture) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(30)the Company has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company, any Guarantor or others;
(31)the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; and
(32)the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be (which instructions may be contained in the Officer’s Certificate referred to in clause (6) above).
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
(a)Subject to Section 8.06, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest on the Notes, but such money need not be segregated from other funds except to the extent required by law.
(b)The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders.
(c)Anything in this Article 8 to the contrary notwithstanding, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or Government Securities held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Company.
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The New York Times or The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or Government Securities in accordance with Section 8.02 or Section 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or Section 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or Section 8.03, as the case may be; provided that, if the Company makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
(a)Notwithstanding Section 9.02, without the consent of any Holder, the Company, the Guarantors (except that no existing Guarantor will be required to execute any amendment or supplement of this Indenture that solely relates to changes described in Section 9.01(a)(5)), the Trustee and the Notes Collateral Agent may amend this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements (subject to the terms of the Intercreditor Agreements) to:
(33)cure any ambiguity, omission, defect or inconsistency;
(34)provide for the assumption by a successor entity of the obligations of the Company or any Guarantor under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements in accordance with Section 5.01; (35)provide for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes; provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;
(36)comply with the rules of any applicable Depositary;
(37)add Guarantors with respect to the Notes or release a Guarantor from its obligations under its Note Guarantee or this Indenture, in each case, in accordance with the applicable provisions of this Indenture;
(38)secure the Notes and the Note Guarantees;
(39)to confirm and evidence the release, termination or discharge of any Lien securing the Notes or the Note Guarantees in accordance with the terms of this Indenture, the Collateral Documents or Intercreditor Agreements;
(40)add covenants of the Company and its Subsidiaries or Events of Default for the benefit of Holders or to make changes that would provide additional rights to the Holders or to surrender any right or power conferred upon the Company or any Guarantor;
(41)make any change that does not materially adversely affect the legal rights under this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements of any Holder;
(42)comply with any requirement of the SEC in connection with any required qualification of this Indenture under the Trust Indenture Act;
(43)evidence and provide for the acceptance of an appointment of a successor Trustee (provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture) or successor notes collateral agent;
(44)conform the text of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements to any provision of the “Description of the New Notes” section of the Offering Memorandum to the extent that such provision in such “Description of the New Notes” section was intended to be a verbatim recitation of a provision of
this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements, as confirmed in an Officer’s Certificate delivered to the Trustee; or
(45)make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes or, if Incurred in compliance with this Indenture, Additional Notes; provided, however, that (A) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (B) such amendment does not materially and adversely affect the rights of Holders to transfer Notes.
(b)The Holders of the Notes will be deemed to have consented for purposes of the Collateral Documents and the applicable Intercreditor Agreements to any of the following amendments, waivers and other modifications to the Collateral Documents and the applicable Intercreditor Agreements:
(46)(A) to add other parties (or any authorized agent thereof or trustee therefor) holding Secured Indebtedness that is Incurred in compliance with the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures, the 2023 Credit Facility, the 2024 Notes Indenture, this Indenture and the Collateral Documents and (B) to establish the priority of the Liens on any Collateral securing such Secured Indebtedness under the applicable Intercreditor Agreement with the Liens on such Collateral securing the Obligations under this Indenture, the Notes and the Note Guarantees, and (C) to establish that the Liens on any ABL Priority Collateral securing any Indebtedness replacing the ABL Facility permitted to be Incurred under this Indenture shall be senior to the Liens on such ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Note Guarantees, and that the Liens on any Non-ABL Priority Collateral securing any such Indebtedness shall be junior to the Liens on such Non-ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Note Guarantees, all on the terms provided for in the ABL Intercreditor Agreement in effect immediately prior to such amendment or other modification; and all proceeds of the Collateral shall be payable to the Notes Collateral Agent and such representatives for any other Pari Passu Secured Indebtedness then outstanding on a pro rata basis based on the aggregate outstanding principal amount of Obligations under this Indenture and the Notes and under any other Pari Passu Secured Indebtedness then outstanding, all on the terms provided for in the applicable Intercreditor Agreement in effect immediately prior to such amendment;
(47)to effectuate the release of assets included in the Collateral from the Liens securing the Notes in accordance with this Indenture or the Collateral Documents if those assets are (A) owned by a Guarantor and that Guarantor is released from its Note Guarantee in accordance with the terms of this Indenture or (B) sold, transferred or otherwise disposed of in a transaction permitted or not otherwise prohibited by this Indenture;
(48)to establish that the Liens on any Collateral securing any Indebtedness refinancing any Secured Indebtedness permitted to be Incurred in accordance with Section 4.09 shall rank pari passu with the Liens on such Collateral securing the Obligations under such replaced Secured Indebtedness and otherwise conform to the Lien priorities in any applicable Intercreditor Agreement; and
(49)upon any cancellation or termination of the ABL Facility without a replacement thereof, to establish that the ABL Priority Collateral (in addition to the Non-ABL Priority Collateral) shall secure the Obligations under this Indenture, the Notes and the Note Guarantees on the same basis as the Non-ABL Priority Collateral pursuant to the Lien priorities
in any applicable Intercreditor Agreement, subject to the terms of the applicable Intercreditor Agreements in effect immediately prior to such amendment or other modification.
(c)Upon the request of the Company, and upon receipt by the Trustee of the documents described in Section 13.04, the Trustee and the Notes Collateral Agent shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but neither the Trustee nor the Notes Collateral Agent shall be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders.
(a)Except as provided in Section 9.01 and this Section 9.02 (and subject to the terms of the Intercreditor Agreements), the Company, the Guarantors, the Trustee and the Notes Collateral Agent may amend or supplement this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) and, subject to Section 6.04 and Section 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with the purchase of, or tender offer or exchange offer for, Notes). Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
(b)Upon the request of the Company, and upon the filing with the Trustee and the Notes Collateral Agent of evidence satisfactory to the Trustee and the Notes Collateral Agent of the consent of the Holders as aforesaid, and upon receipt by the Trustee and the Notes Collateral Agent of the documents described in Section 7.02 and Section 13.04, the Trustee and the Notes Collateral Agent shall join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s or the Notes Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case each of the Trustee and the Notes Collateral Agent may in their discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
(c)It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver. It shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will send to the Holders a notice briefly describing such amendment, supplement or waiver. However, any failure of the Company to send such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of any such amendment, supplement or waiver.
(e)Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(50)reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(51)reduce the stated rate of interest or extend the stated time for payment of interest on any Note;
(52)reduce the principal of or extend the Stated Maturity of any Note;
(53)waive a Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(54)reduce the premium payable upon the redemption or repurchase of any Note or change the date on which any Note may be redeemed or repurchased as described in Section 3.07, Section 4.15 and Section 4.16 whether through an amendment or waiver of provisions in the covenants, definitions or otherwise (except amendments to the definitions of “Asset Disposition” and “Change of Control”);
(55)make any Note payable in a currency other than that stated in the Note;
(56)amend the contractual right expressly set forth in this Indenture or the Notes of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
(57)make any change in the amendment or waiver provisions which require each Holder’s consent;
(58)modify the Note Guarantees in any manner materially adverse to the
Holders;
(59)modify or change any provision of this Indenture, any Intercreditor
Agreement or the Collateral Documents that (i) adversely affects the ranking as to right of payment (it being understood that the “right of payment” here refers to contractual ranking), Lien priority or payment priority, (ii) has the effect of permitting the creation of any “unrestricted subsidiary” or similar Subsidiary that is not subject to Article 4 or Section 6.01 of this Indenture or (iii) has the effect of permitting (to the extent not otherwise permitted by the terms of this Indenture as in effect on the Issue Date) the Incurrence of additional Indebtedness in the form of “additional notes” for the purpose of influencing voting thresholds;
(60)modify or change any provision in this Indenture or any Intercreditor Agreement relating to the payment terms or application of proceeds in connection with the Notes, including any payment or application of proceeds waterfalls; or
(61)release all or substantially all of the Collateral or the Guarantees.
(f)In addition, and subject to Section 9.02(e)(10), without the consent of Holders of 66⅔% in aggregate principal amount of the Notes outstanding, no amendment, supplement or waiver may modify any Collateral Document or the provisions in this Indenture relating to the Notes dealing with the Collateral Documents in any matter, taken as a whole, materially adverse to the Holders or otherwise release Collateral in excess of $50.0 million from the Liens securing the Notes other than in accordance with this Indenture, the Collateral Documents and the Intercreditor Agreements. Notwithstanding anything to the contrary herein, to the extent, and solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company
and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities, in each case with respect to the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the Notes, may be released with the consent of (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Facility, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the 2025 Credit Facility, and (iii) holders holding in excess of 66 2/3% of the aggregate principal amount of the outstanding 2025 Notes, solely in the event that such lenders and holders determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors. Upon and simultaneously with such release, the priority of Liens on the pledged equity of Diebold Germany shall automatically be changed such that the Lien in favor of the Superpriority Credit Facility is senior to the Lien in favor of the 2025 Credit Facility, the 2025 Notes and (for the avoidance of doubt) the Notes (it being understood that the Lien on the pledged equity of Diebold Germany securing the Notes shall at all times be junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes); provided that, no such release will be effective until the applicable proceeding is actually commenced. In addition, and notwithstanding the foregoing, additional Indebtedness that may be secured by Liens senior to the Liens securing the 2025 Credit Facility and the 2025 Notes may be permitted with the consent of Holders holding at least 66 2/3% of the aggregate principal amount of the Notes outstanding. In addition, without the consent of Holders of 75% in aggregate amount of the Notes outstanding, no amendment, supplement, or waiver may modify or waive any of the Guarantor Release Protection Provisions.
(g)A consent to any amendment, supplement or waiver of this Indenture, the Notes or the Note Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.
Section 9.03 Compliance with Trust Indenture Act.
Upon and after, but not before, the qualification of this Indenture under the Trust Indenture Act, every amendment or supplement to this Indenture or the Notes shall be set forth in an amended or supplemental indenture that complies with the Trust Indenture Act as then in effect.
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver that is effective in accordance with its terms and thereafter binds every Holder.
(b)The Company may, but shall not be obligated to, fix a record date pursuant to Section 1.05 for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver.
Section 9.05 Notation on or Exchange of Notes.
(a)The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
(b)Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee and Notes Collateral Agent to Sign Amendments, etc.
(a)The Trustee or the Notes Collateral Agent, as the case may be, shall sign any amendment, supplement or waiver to this Indenture authorized pursuant to this Article 9 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Notes Collateral Agent, as the case may be. In executing any amendment, supplement or waiver to this Indenture, the Trustee and the Notes Collateral Agent shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the valid and binding obligation of the Company and any Guarantor party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
(b)The Notes Collateral Agent shall sign any amendment, supplement, consent or waiver authorized pursuant to any of the Collateral Documents or Intercreditor Agreements in accordance with the terms thereof (including, without limitation, without the further consent or agreement of the Holders if so provided in such Collateral Document or the Intercreditor Agreements or otherwise in accordance with Section 9.01(b) of this Indenture) if the amendment, supplement, consent or waiver does not adversely affect the rights, duties, liabilities or immunities of the Notes Collateral Agent. In executing any amendment, supplement, consent or waiver to any of the Collateral Documents or the Intercreditor Agreements, the Notes Collateral Agent shall receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement, consent or waiver is authorized or permitted by the applicable Collateral Document and/or the Intercreditor Agreements, as the case may be, and complies with the provisions thereof.
Section 9.07 Payments for Consent.
The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to all Holders and is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment; provided that this Section 9.07 shall not be breached if such consents, waivers or amendments are sought in connection with an exchange offer where participation in such exchange offer is limited to Holders who are (i) “qualified institutional buyers,” within the meaning of Rule 144A, (ii) institutional “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act, or (iii) non-U.S. persons within the meaning of Regulation S then such consideration need only be offered to all Holders to whom the exchange offer is made and to be paid to all such Holders that consent, waive or agree to amend in such time frame.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this Article 10 and the Collateral and Guarantee Requirements, each of the Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees, on a senior basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other Obligations of the Company to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise collectively, the “Guaranteed Obligations.” Failing payment by the Company when due of any amount so Guaranteed or any performance so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b)The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 10.06.
(c)Each of the Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(d)If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations Guaranteed hereby may be accelerated as provided in Article 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in Article 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the
right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
(f)Subject to Section 11.07(b), each Note Guarantee shall remain in full force and effect and continue to be effective should any petition or proceeding be filed by or against the Company or any Guarantor for liquidation or reorganization, should the Company or any Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver, trustee, interim receiver, monitor or other similar official be appointed for all or any significant part of the Company’s or any Guarantor’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Note Guarantees, whether as a “voidable preference,” “fraudulent transfer,” “transfer at undervalue” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g)In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h)Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(i)The Note Guarantees will be secured by Liens, with the priority of such Liens conforming to the Lien priorities in any applicable Intercreditor Agreement, subject to Permitted Liens, on the Collateral of each applicable Guarantor (which Collateral will also secure the ABL Facility, the Superpriority Credit Facility, the 2025 Notes, the 2025 Credit Facility and, other than with respect to the Released Domestic Collateral and the Foreign Collateral, the 2023 Credit Facility, with the priority of such Liens in each case conforming to the Lien priorities in any applicable Intercreditor Agreement).
(j)Notwithstanding anything to the contrary herein, with respect to any Covered Guarantor that is restricted or prohibited from Guaranteeing the Notes on the Issue Date due to applicable works council or similar ongoing processes, such Covered Guarantor will promptly execute a supplemental indenture following the completion of such process to provide a Guarantee of the Notes to the extent permitted following such processes and required by the terms of this Indenture.
(k)For the avoidance of doubt, no French Guarantor shall be under any obligation to provide a Note Guarantee or to grant a security interest on any of its assets to secure such Note Guarantee if it is determined by such French Guarantor that such Note Guarantee or the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered) where such opinion has not been delivered (or is not deemed delivered).
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a preference, fraudulent conveyance, fraudulent transfer or a transfer at undervalue for purposes of Bankruptcy Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount
and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this Article 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.
For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Indenture, the Notes or any Note Guarantee (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
If any provision of this Indenture, the Notes, any Note Guarantee or other obligations arising pursuant to this Indenture would oblige any Canadian Note Party to make any payment of interest or other amount payable to any Holder in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Holder of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Holder of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Holder which would constitute interest for purposes of section 347 of the Criminal Code (Canada).
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Holder shall have received an amount in excess of the maximum permitted by section 347 of the Criminal Code (Canada), the applicable Canadian Note Party shall be entitled to obtain reimbursement from such Holder in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such Holder to such Canadian Note Party.
Each Guarantor that makes a payment under its Note Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment, determined in accordance with GAAP.
In particular,
(a)the Note Guarantee granted by any German Guarantor and of any payment obligations (together, the "Enforcement of Claims") are restricted if and to the extent (i) the enforcement proceeds of an Enforcement of Claims are applied in satisfaction of any liability of such German Guarantor's direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (other than the liabilities of any Subsidiary of the German Guarantor) and (ii) such enforcement would cause the amount of the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) Net Assets, as adjusted pursuant to the following provisions, to fall below the amount of its registered share capital (Stammkapital) (Begründung einer Unterbilanz) or to increase any already existing capital impairment (Vertiefung einer Unterbilanz) or a violation of sections 30 and 31 of the German Limited Liability Company Act (GmbHG), (each such event is hereinafter referred to as a "Capital Impairment"). For the purposes of the calculation of a Capital Impairment, the following balance sheet items shall be adjusted as follows:
(i)the amount of any increase of the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) registered share capital that has been effected after the date of this Agreement (or, if at a later point, the accession thereto by the relevant German Guarantor as a Guarantor) effected without prior written consent of the Trustee shall be deducted from the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) registered share capital;
(ii)loans provided to the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) the Company or any of its Subsidiaries shall be disregarded if and to the extent such loans are subordinated or are considered subordinated by operation of law at least into the rank pursuant to Section 39 para 2 of the German Insolvency Code (Insolvenzordnung);
(iii)loans or other contractual financial liabilities incurred in violation of the provisions of the Note Documents shall be disregarded;
(iv)assets of the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) shall be disregarded to the extent profits would be prohibited from distribution pursuant to section 268 paragraph (8) of the German Commercial Code (Handelsgesetzbuch); and
(v)the amount of non-distributable assets according to section 253 paragraph (6) or section 272 paragraph (5) of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets.
(vi)the costs of any Auditor's Determination (as defined below) shall be taken into account in calculating the Net Assets.
In a situation where a Capital Impairment would occur in relation to a German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) after satisfaction (in whole or in part) of the relevant payment demand under this Note Guarantee or this Indenture, the German Guarantor shall without undue delay (but no later than eight (8) weeks after occurrence of such situation, unless an extension of such period is granted by the Trustee), to the extent legally permitted, dispose of all assets which are not necessary for its business (nicht betriebsnotwendig) where the relevant assets are shown in the balance sheet of the German Guarantor with a book value significantly lower than the market value of such assets (each such asset a "Relevant Asset"), unless such disposal would not be commercially justifiable. The relevant German Guarantor shall, within ten (10) Business Days upon receipt of a written request from the Trustee relating to any Relevant Asset which is not being sold pursuant to the preceding sentence, provide the Trustee with reasonably detailed information as to why it considers the sale of such Relevant Asset not to be commercially justifiable. In the latter case, the relevant German Guarantor and the Trustee will liaise with each other and the relevant German Guarantor shall use its best efforts to make further attempts to dispose of such Relevant Asset on more beneficial terms and keep the Trustee informed about its progress on a continuous basis.
The limitation pursuant to this Section 10.02(a) shall apply, subject to the following requirements, if following a demand for payment by the Trustee under this Note Guarantee or this Indenture, the German Guarantor notifies the Trustee ("Management Notification") within 15 Business Days upon receipt of the relevant demand that a Capital Impairment would occur (setting out in reasonable detail to what extent a Capital Impairment would occur and providing an estimation of the net proceeds realization along with the calculations / information on which such estimate is based, or other measures undertaken in accordance
with the mitigation provisions set out above). If the Management Notification is contested by the Trustee, the German Guarantor undertakes (at its own cost and expense) to arrange for the preparation of a balance sheet by its auditors in order to have such auditors determine whether (and if so, to what extent) any payment under this Note Guarantee or this Indenture would cause a Capital Impairment (the "Auditor's Determination"). The Auditor's Determination shall be prepared, taking into account the adjustments set out above in relation to the calculation of a Capital Impairment, by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. The German Guarantor shall provide the Auditor's Determination to the Trustee within twenty-five (25) Business Days from the date on which the Trustee contested the Management Notification in writing. The Auditor's Determination shall be binding on the German Guarantor and the Secured Parties.
Notwithstanding the above, the provisions of this Section 10.02(a) shall not apply:
(i)if the German Guarantor is (i) party as dominated entity (beherrschtes Unternehmen) of a domination agreement (Beherrschungsvertrag) and/or a profit and loss transfer agreement (Gewinnabführungsvertrag) pursuant to section 30 para 1 sentence 2 of the German Limited Liability Company Act (GmbHG), and (ii) it is to be expected (based on information available to the managing directors of the German Guarantor, interpreted by applying the due care of a prudent businessman (Sorgfalt eines ordentlichen Geschäftsmannes)) that the relevant German Guarantor will be able to recover the annual loss (Jahresfehlbetrag) from the relevant dominating entity pursuant to Section 302 of the German Stock Corporation Act (Aktiengesetz) after the Note Guarantee or other payment obligation under this Indenture has been enforced against the German Guarantor or the German Federal Court of Justice has ruled that only limb (a) is required to avoid a violation of sections 30, 31 German Limited Liability Company Act (GmbHG);
(ii)if the German Guarantor has a recourse right (Rückgriffsanspruch) towards its direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) which is fully recoverable (werthaltig) at the time of the Enforcement of Claims; or to any amounts borrowed under the Note Documents to the extent the proceeds of such borrowing are on- lent to the German Guarantor or its Subsidiaries to the extent that any amounts so on-lent are still outstanding at the time the relevant demand is made against the German Guarantor;
(b)with respect to any French Guarantor, notwithstanding any other provision of this Indenture, the Note Guarantee and the obligations and liabilities of any French Guarantor under this Note Guarantee are subject to the following limitations:
(i)the obligations and liabilities of any French Guarantor under this Indenture and the Note Guarantee will not include any obligation or liability which, if incurred, would constitute financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/or a misuse of assets and/or abuse of power, within the meaning of articles L. 241-3, L. 242-6 and L. 244-1 of the French Commercial Code or any other law or regulation having the same effect or any interpretation of such laws and/or regulations by the French courts (as the case may be);
(ii)the obligations and liabilities of any French Guarantor under this Indenture and the Note Guarantee shall be limited at any time to:
(1)in respect of the Guaranteed Obligations under this Note Guarantee and of any other party hereto which is its direct or indirect Subsidiary, all amounts which will be due by such party (which is its direct or indirect Subsidiary) as issuer (if it is not a French party), or as issuer and/or subject to the provisions of the paragraph below, as Guarantor (as long such party is a French Guarantor) under this Note Guarantee and any other loan, credit and guarantee documents to which it is a party; and
(2)in respect of the Guaranteed Obligations under this Note Guarantee and of any party hereto which is not a direct or indirect Subsidiary of the relevant French Guarantor (a “Guaranteed Obligor”), the aggregate of all amounts borrowed directly or indirectly by any such Guaranteed Obligor under this Note Guarantee to the extent any such amount(s) will be on-lent (directly or indirectly) or otherwise made available to the relevant French Guarantor or its direct or indirect Subsidiaries (including, but not limited to, by way of intercompany loan agreements or similar arrangements whether direct or indirect) plus any accrued and unpaid interest, costs and fees in respect of or attributable to that on-lending, and which will be outstanding on the date a payment is to be made in respect of the Guaranteed Obligations of the relevant Guaranteed Obligor by the relevant French Guarantor under this Note Guarantee (it being specified that any payment made by the French Guarantor under this Note Guarantee in respect of that Guaranteed Obligor’s payment obligations under this Note Guarantee shall automatically extinguish, pro tanto, the payment obligations under the relevant intercompany loan agreements or similar arrangements referred to above).
(3)For the purposes of this Section “Subsidiary” means, in relation to any company, another company which is controlled by it within the meaning of article L. 233-3 of the French Commercial Code.
(4)It is acknowledged that such French Guarantor is not acting jointly and severally with the other Guarantors and shall not be considered as “co-débiteur solidaire” as to their obligations pursuant to the guarantee granted in accordance with the provisions of this Note Guarantee.
(c)the Guarantee of an Italian Guarantor shall not exceed at any time the sum of: (x) the aggregate principal amount of any amount made available to the relevant Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359, paragraph 1, numbers 1 and/or 2, of the Italian Civil Code) by using the proceeds of the Notes; and (y) the aggregate principal amount of any intercompany loans or other financial support in any form (such term, for the avoidance of doubt, not including equity contributions), advanced or made available to such Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359 of the Italian Civil Code) by the Company or any Guarantor (whether directly or indirectly) on or following the Issue Date, less the aggregate at that time of (I) all amounts paid by such Italian Guarantor under this Note Guarantee and (II) all amounts recovered by any secured parties under any other security document under which the Italian Guarantor acts as security provider of the relevant collateral. Notwithstanding any provision to the contrary herein,
(A)if and to the extent the guarantee of the Italian Guarantor under this Note Guarantee in respect of the Notes and/or this Indenture would result in a breach of any Italian provisions relating to financial assistance, including articles 2358 and 2474, as applicable, of the Italian Civil Code, applicable to that
Italian Guarantor, the Italian Guarantor will be deemed to have no liability hereunder and the Note Guarantee of such Italian Guarantor in respect thereof shall not be in force and effect ab initio, provided that the Note Guarantee given by the Italian Guarantor will not guarantee any amount under the Notes whose purpose or actual use is, directly or indirectly, to finance (and/or refinance) (i) the acquisition of the Italian Guarantor (and/or of any Controlling Person of the Italian Guarantor) and/or (ii) the subscription of an equity interest of the Italian Guarantor (and/or of any Controlling Person of the Italian Guarantor) and/or (iii) the payment of any interest, fees, costs and expenses, stamp, registration or other taxes in connection therewith and/or (iv) any existing indebtedness incurred for the purposes of (i), (ii) and (iii) above; and (B) in order to comply with the mandatory provisions of Italian law in relation to (x) maximum interest rates (including the Italian Usury Law and article 1815 of the Italian Civil Code), and (y) capitalization of interests (including article 1283 of the Italian Civil Code and article 120 of the Italian Legislative Decree No, 385 of 1 September 1993), the obligations of the Italian Guarantor under this Note Guarantee shall not include, and shall not extend to (1) any interest qualifying as usurious pursuant to the Italian Usury Law and (2) any interest on overdue amounts compounded in violation of the provisions set forth by article 1283 of the Italian Civil Code and/or article 120 of the Italian Banking Law, respectively.
Without prejudice to what stated under item (b)(ii) above, in any event, (i) pursuant to article 1938 of the Italian Civil Code, the maximum amount that an Italian Guarantor may be required to pay in respect of its obligations under this Note Guarantee shall not exceed Euro 4,000,000.00 to be considered as a global cap applicable, without duplication, to such Italian Guarantor’s obligations under this Note Guarantee and any security and/or guarantee granted by such Italian Guarantor to secure and/or guarantee the obligations of any entity other than such Italian Guarantor under any of the Superpriority Credit Facility, the ABL Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2025 Indentures or the 2024 Notes Indenture, the Notes or this Indenture, provided that such cap will not apply to any own debt obligations of such Italian Guarantor as borrower under the ABL Facility; (ii) the aggregate amount of interest guaranteed by such Italian Guarantor in respect of any Notes will be at any time equal to the interest then outstanding in respect of the principal amount of any Notes guaranteed by such Italian Guarantor at that time; and (iii) it is hereby expressly acknowledged and agreed that, notwithstanding any provision to the contrary under this Agreement, in no event parallel debt or trust provisions under this Agreement shall apply to any Collateral or guarantee granted by such Italian Guarantor.
Moreover, for the purposes of the transparency provisions set forth in the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti) applicable to transactions and banking and financial services issued by Bank of Italy, as following amended and integrated, each Italian Guarantor hereby acknowledges and confirms that:
(i) each of them has appointed and has been assisted by its respective legal counsels in connection with the negotiation, preparation and execution of this Indenture; and this Indenture, and all of its terms and conditions have been specifically negotiated in all their aspects (oggetto di trattativa individuale) between the parties hereof.
(d)Diebold Nixdorf S.L. will not cover those obligations or liabilities which, if Guaranteed, will constitute an infringement of Spanish financial assistance laws in accordance with Articles 143 and 150 of the Spanish Companies Act or in any other legal provision that may substitute such Articles 143 and/or 150 or be applicable to any Spanish Guarantor in respect of such financial assistance;
(e)any Guarantor incorporated under the laws of Sweden under this Indenture (including the obligation to indemnify) shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) in force from time to time regulating unlawful distribution of assets and transfer of value (Sw. värdeöverföring)
pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act and financial assistance and other prohibited loans, prohibited security and prohibited guarantees pursuant to Chapter 21, Sections 1 to 3 and 5, and it is understood that the obligations and liabilities of each Guarantor incorporated in Sweden under this Indenture only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.
(f)notwithstanding any provision to the contrary in this Indenture, the liability of the Belgian Guarantor expressed to be assumed in Section 10.01 for the obligations of the Company, which is not a direct or indirect subsidiary of the Belgian Guarantor, will be limited to the greater of: (a) an amount equal to 90 percent of the Net Assets of the Belgian Guarantor calculated on the basis of its latest available annual financial statements at the date of this Indenture and (b) an amount equal to 90 percent of the Net Assets of that Belgian Guarantor at the date of the most recent audited annual financial statements of that Belgian Guarantor available on the date on which the relevant demand under this Section 10 of this Indenture is made; and (c) the highest amount of On-Lending to that Belgian Guarantor and its subsidiaries outstanding at any time between the date of this Indenture and the date on which a demand is made against it hereunder (the “Belgian Maximum Guaranteed Amount”). For the avoidance of doubt, any guarantee granted by a Belgian Guarantor shall not include any liability to the extent it would constitute unlawful financial assistance, within the meaning of article 5:152, 6:118 and 7:227 of the Belgian Companies and Associations Code (or any equivalent and applicable provisions in any relevant jurisdiction). The limitations set out in this Section 10.02 shall apply mutatis mutandis to any Lien granted by the relevant Belgian Guarantor and to any guarantee, undertaking, obligation, indemnity and payment, including (but not limited to) distributions, cash sweeps, credits, loans and set-offs, pursuant to or permitted by the loan documents and made by that Belgian Guarantor. For the avoidance of doubt, any payment made by a Belgian Guarantor in respect of the Company, which is not a direct or indirect Subsidiary of that Belgian Guarantor shall reduce the Belgian Maximum Guaranteed Amount.
(g)the Guarantee granted by any Polish Guarantor will be subject to the following limitations: (i) the guarantee will not apply to any liability to the extent that it would result in breaching Article 189 § 2 of the Polish Commercial Companies Code in the form of reduction of the assets required for the coverage of the total nominal capital or the repayment of capital as prohibited under Article 189 § 2 of the Polish Commercial Companies Code or similar provisions of the Polish Commercial Companies Code; and (ii) to the extent the liability of a Polish Guarantor under this Indenture is considered a financial liability within the meaning of Article 11
§ 2 of the Polish Insolvency Act dated 28 February 2003, the liability of a Polish Guarantor shall be limited so that it does not result in the insolvency (niewypłacalność) of a Polish Guarantor within the meaning of Article 11 § 2 of the Polish Insolvency Act or in the insolvency within the meaning of Article 6 section 3 of the Polish Restructuring Act. The limitation as described above in this Section will not apply if one or more of the following circumstances occur: (i) any Event of Default is continuing, irrespective of whether such Event of Default occurs before or after a Polish Guarantor becomes insolvent (niewypłacalny) within the meaning of Article 11 paragraph 2 of the Polish Insolvency Act or Article 6 of the Polish Restructuring Act; (ii) the liabilities of a Polish Guarantor (other than those under this Note Guarantee) result in its insolvency (niewypłacalność) within the meaning of Article 11 paragraph 2 of the Polish Bankruptcy Law or Article 6 of the Polish Restructuring Act; or (iii) Polish law is amended in such a manner that over-indebtedness (nadmierne zadłużenie) defined in Article 11 paragraph 2 of the Polish Insolvency Act (as in force on the date of this Indenture) no longer gives grounds for declaration of bankruptcy or obliges the representatives of a Polish Guarantor to file for bankruptcy.
Section 10.03 Execution and Delivery.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer or person holding an equivalent title. (b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. (c)If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantees shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.11, the Company shall cause any newly created or acquired Subsidiary to comply with the provisions of Section 4.11 and this Article 10, to the extent applicable.
Section 10.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture or the Notes shall have been paid in full.
Section 10.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the Guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 10.06 Release of Note Guarantees.
(a)A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee shall be required for the release of such Guarantor’s Note Guarantee, upon:
(1)(A) any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, amalgamation, consolidation or otherwise) of the Capital Stock of such Guarantor after which the applicable Guarantor is no longer a Subsidiary, which sale, assignment, transfer, conveyance, exchange or other disposition is made in compliance with the provisions of this Indenture;
(B)[reserved];
(C)[reserved];
(D)the consent of the Holders in accordance with Article 9;
(E)the Company’s exercise of its Legal Defeasance option or Covenant Defeasance option in accordance with Article 8; or
(F)the satisfaction and discharge of the Company’s obligations under this Indenture in accordance with the terms of this Indenture; and
(2)in the case of clauses (a)(1)(A), (D), (E) and (F) only, such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction or release have been complied with.
(b)At the written request of the Company, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release and discharge in respect of the applicable Guarantee.
(c)Notwithstanding the foregoing, in the event that any released Guarantor (in the case of Section 10.06(a)(1)( D)) thereafter borrows money or Guarantees any other Indebtedness for borrowed money of the Company or any Guarantor, the terms of the consent described in Section 10.06(a)(1)(D) may provide that such former Guarantor shall again provide a Note Guarantee if required pursuant to Section 4.11.
Section 10.07 Spanish Law Particularities.
(a)Each Spanish Guarantor acknowledges that the Guaranteed Obligations under this Indenture shall constitute, when due and payable under the relevant agreements from which they arise, liquid, due and payable obligations of such Spanish Guarantor (deuda líquida y exigible).
(b)Each Spanish Guarantor acknowledges that the Note Guarantee provided by it under this Article 10 must be construed as a first demand guarantee (garantía a primera demanda) and not as a guarantee (fianza) of those detailed in Section 1,830 et seq. of the Spanish Civil Code, and, therefore, the benefits of preference (excusión), order (orden) and division (división) shall not be applicable.
(c)For the purposes of articles 399.2, 627 and 686.2 of the Spanish Insolvency Law, each Spanish Guarantor shall remain bound by this Note Guarantee in the event that the Company or any Guarantor hereto reaches an arrangement with its creditors in the course of insolvency proceedings or similar. In particular, no Spanish Guarantor may benefit from potential privileges with regard to the Note Guarantee (such as partial release of debt, stays or others) that have been provided for in the arrangement the Company or any Guarantor hereto may have reached with their creditors (unless all of the Holders of the Notes have expressly voted in favour of the approval of the arrangement) and the Note Guarantee shall therefore continue on the same terms and in full force and effect with respect to the Guaranteed Obligations. In the event of insolvency of the Spanish Guarantor, the Holders of the Notes and/or the Trustee shall also be entitled to request the inclusion on the list of creditors of the then outstanding unpaid amounts following the enforcement of the Note Guarantee.
(d)For the avoidance of doubt, the Notes Obligations of any Spanish Guarantor shall not extend to any obligations that would constitute unlawful financial assistance within the meaning of Section 143.2 or Section 150 of the Spanish Companies Law.
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01 Collateral.
(a)The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Company set forth in Section 7.07, and the Notes, the Note Guarantees, the Intercreditor Agreements and the Collateral Documents, shall be secured, to the maximum extent permitted by law, as provided in the Collateral Documents, which define the terms of the Liens that secure the Notes and the Note Guarantees, subject to the terms of the Intercreditor Agreements. The Trustee, for the benefit of the Holders, hereby appoints GLAS Americas LLC as the initial Notes Collateral Agent and the Notes Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreements. The Company and the Guarantors hereby agree that the Notes Collateral Agent shall hold the Collateral in trust (or, as the case may be, as direct representative) for the benefit of all of the Holders, the Trustee and the Notes Collateral Agent, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements.
(b)Each Holder, by its acceptance of any Notes and the Note Guarantees, consents and agrees to the terms of the Collateral Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure and release of Collateral and the automatic amendments, supplements, consents, waivers and other modifications thereto without the consent of the Holders) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements on the Issue Date, and any Collateral Documents at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith. In the event of conflict between an Intercreditor Agreement, any of the other Collateral Documents and this Indenture, the applicable Intercreditor Agreement shall control. The Company shall deliver to the Notes Collateral Agent copies of all documents required to be filed pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required by Section 11.04(a), to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed.
(c)The Trustee and each Holder, by accepting the Notes and the Note Guarantees, acknowledge that, as more fully set forth in the Collateral Documents and the Intercreditor Agreements, the Collateral as now or hereafter constituted shall be held for the benefit of the Notes Collateral Agent, all the Holders and the Trustee, and that the Liens granted on the Collateral pursuant to the Collateral Documents are subject to and qualified and limited in all respects by the Collateral Documents and the Intercreditor Agreements and actions that may be taken thereunder.
(3)Prior to the discharge of the Superpriority Credit Facility Obligations, to the extent that the Superpriority Credit Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or
the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the Superpriority Credit Facility Collateral Agent in respect of any such matters under the Superpriority Credit Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(4)Prior to the discharge of the 2025 Credit Facility Obligations, to the extent that the 2025 Credit Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the 2025 Credit Facility Collateral Agent in respect of any such matters under the 2025 Credit Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(5)Prior to the discharge of the ABL Obligations, to the extent that the ABL Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the ABL Priority Collateral or makes any determination in respect of any matters relating to the ABL Priority Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the ABL Facility Collateral Agent in respect of any such matters under the ABL Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(6)Prior to the discharge of the obligations under the 2025 U.S. Notes, to the extent that the 2025 U.S. Notes Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the 2025 U.S. Notes Collateral Agent in respect of any such matters under the 2025 U.S. Notes will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(7)Prior to the discharge of the obligations under the 2025 Euro Notes, to the extent that the 2025 Euro Notes Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the 2025 Euro Notes Collateral Agent in respect of any such matters under the 2025 Euro Notes will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(d)Without limiting the powers of the Notes Collateral Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec, each of the Holders hereby irrevocably appoints and authorizes the Notes Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Notes Collateral Agent, to act as the hypothecary representative of the present and future Holders as contemplated under Article 2692 of the Civil Code of Quebec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec and applicable law. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Trustee and the Notes Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Holders. Any person who becomes a Holder in accordance with the terms of this Indenture be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Notes Collateral Agent pursuant to the provisions of ARTICLE 7 also constitute the substitution of the Attorney.
(e)By its acceptance of any Notes and the Note Guarantees, each Holder directs the Trustee to enter into the ABL Intercreditor Agreement in its capacity as New Notes Trustee (as defined in the ABL Intercreditor Agreement) and on behalf of each Holder, and thereby to irrevocably appoint the European Collateral Agent (as defined in the ABL Intercreditor Agreement), on behalf of itself and each Holder, to serve as collateral agent in respect of the Foreign Collateral (as defined in the ABL Intercreditor Agreement (other than Collateral located in or otherwise governed by the laws of France or any province or territory of Canada)) pursuant to the terms of the ABL Intercreditor Agreement.
Section 11.02 Maintenance of Collateral.
The Company and the Note Guarantors shall (a) maintain the Collateral that is material to the conduct of their respective businesses in good working order, condition and repair, except for expiration of intellectual property at the end of its natural term; (b) pay all real estate and other taxes before the same become delinquent (except such as are contested in good faith and by appropriate negotiations or proceedings or as would not result in a material adverse effect); and (c) maintain in full force and effect all material permits and certain insurance coverages.
Section 11.03 Impairment of Collateral.
Subject to the rights of the holders of any senior Liens and Section 11.07, the Company shall not, and shall not permit any of the Subsidiaries to, take or knowingly or negligently omit to take, any action which action or omission would or could reasonably be expected to have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee, the Notes Collateral Agent and the Holders, unless such action or failure to take action is otherwise permitted by this Indenture, the Intercreditor Agreements or the Collateral Documents.
Section 11.04 Further Assurances.
(a)On and after the Issue Date, and subject to the Intercreditor Agreements, the Company shall and shall cause each Guarantor (subject to, in the case of the Domestic Note Parties, the Domestic Collateral and Guarantee Requirements and in the case of the Foreign Note Parties, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles, as applicable), at their sole expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions which may be necessary, including those the Notes Collateral Agent may from time to time reasonably request (it being understood that the Notes Collateral Agent is under no obligation or duty to make such request), to create, better assure, preserve, protect, defend and perfect (or continue the perfection of) the validity and priority of the Liens and the security interests in the United States and the Specified Jurisdictions and the rights and remedies created or intended to be created under the Collateral Documents (including, without limitation, the notarization of the Spanish Collateral Documents, the delivery of notifications to counterparties and the registration in any applicable public registry) for the benefit of the Trustee, the Notes Collateral Agent and the Holders.
(b)On and after the Issue Date, with respect to any property (other than Excluded Property and Foreign Excluded Property) of the Company or any Guarantors as to which the Notes Collateral Agent, for the benefit of the Holders, does not have a perfected Lien, the Company shall and shall cause the applicable Guarantor to promptly (i) execute and deliver to the Notes Collateral Agent such amendments to the Collateral Documents or such other documents as the Notes Collateral Agent deems reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a perfected second-priority security interest (subject to Liens permitted under Section 4.10) in such property, including the filing of Uniform Commercial Code and PPSA financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Notes Collateral Agent.
(c)On and after the Issue Date, with respect to any Subsidiary created or acquired by the Company or any Guarantor, within 45 days of such Person becoming a Subsidiary (or such later date as agreed by the Notes Collateral Agent), (i) the Company shall take all actions (if any) to cause such Subsidiary (other than an Excluded Subsidiary) to comply with the Collateral and Guarantee Requirements, (ii) the Company shall, or shall cause the applicable Guarantor to, execute and deliver to the Notes Collateral Agent such amendments to the Collateral Documents as the Notes Collateral Agent deems reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a perfected second-priority security interest (subject to Liens permitted under Section 4.10) in the Capital Stock of such new Subsidiary that is owned by the Company or any Guarantor except to the extent such Capital Stock constitutes an Excluded Property or Foreign Excluded Property, and (iii) except to the extent constituting Excluded Property or Foreign Excluded Property, if such Capital Stock is certificated, deliver to the Notes Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Guarantor, as applicable.
(d)Notwithstanding anything to the contrary herein or in any other Note Document, if the Paderborn Property constitutes (or is required to constitute) collateral securing the Superpriority Credit Facility, the Company shall promptly notify the Trustee, the Notes Collateral Agent and Holders of the Notes thereof. In the case of any such notice to Holders, such notice shall seek the direction of Holders of Notes, to be given no later than 30 days after such notice is given, as to whether the Paderborn Property shall be included in the Collateral securing the Notes and it shall describe in reasonable detail the tax consequences to Holders and beneficial owners of the Notes of including the Paderborn Property in the Collateral. If the Required Noteholders determine to include the Paderborn Property in the Collateral securing the Notes, the Paderborn Property shall cease to be Foreign Excluded Property and constitute Collateral, and such real property shall be subject to Section 11.06 as if such real property had been acquired on the date of such notification.
Section 11.05 After-Acquired Property.
Subject to the applicable limitations and exceptions set forth in the Collateral Documents, the Agreed Security Principles and this Indenture (including with respect to Excluded Property), from and after the Issue Date, if the Company or any Guarantor acquires any After-Acquired Property or if any new Subsidiary becomes a Guarantor, the Company or such Guarantor shall promptly (i) grant a second- priority perfected security interest (subject to Permitted Liens and the terms of the Intercreditor Agreements) upon any such property, as security for the Notes and the Note Guarantees and (ii) execute and deliver such mortgages, deeds of trust, security instruments, financing statements and certificates as shall be necessary to vest in the Notes Collateral Agent a perfected security interest, subject only to Permitted Liens, in such After-Acquired Property or in the Collateral of such Guarantor and to have such After-Acquired Property or such Collateral (but subject to the applicable limitations and exceptions set forth in the Collateral Documents, the Agreed Security Principles and this Indenture) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property or Collateral to the same extent and with the same force and effect.
Section 11.06 Real Estate Mortgages and Filings.
(a)With respect to any Material Real Property owned by the Company or a Guarantor in the United States on the Issue Date or acquired by the Company or a Guarantor in the United States after the Issue Date that forms a part of the Collateral (individually and collectively, the “Premises”), within 90 days of the Issue Date or the date of acquisition (or such longer period as may be permitted under the Superpriority Credit Facility), as applicable:
(8)The Company or such Guarantor shall deliver to the Notes Collateral Agent, as mortgagee or beneficiary, as applicable, for the ratable benefit of itself and the Holders, counterparts of each Mortgage with respect to each such Premises, in accordance with the requirements of this Indenture and/or the Collateral Documents, duly executed by the Company or such Guarantor, suitable for recording in all recording offices that the Notes Collateral Agent may reasonably deem necessary to create a valid and enforceable mortgage lien (and to perfect such lien) at the time of recordation thereof, with the priority required by this Indenture, the Collateral Documents and the Intercreditor Agreements;
(9)The Notes Collateral Agent shall have received a mortgagee’s title insurance policy insuring (or committing to insure) in favor of the Notes Collateral Agent, and its successors and/or assigns, in the form necessary, with respect to the property purported to be covered by the applicable Mortgage, to insure that the interest created by such Mortgage constitutes valid mortgage liens on the applicable Premises, with the priority required by this Indenture, the Collateral Documents and the Intercreditor Agreements, free and clear of all Liens, defects and encumbrances, other than Permitted Liens. Any such title policy shall be in amounts
equal to the estimated Fair Market Value of the Premises covered thereby, and such policies shall also include, to the extent available, all such customary endorsements and reinsurance as are available in the applicable jurisdiction and as the Notes Collateral Agent may reasonably request which are available at commercially reasonable rates in the jurisdiction where the applicable Premises is located; and
(10)The Company or the Guarantors shall deliver to the Notes Collateral Agent with respect to such Premises, surveys of each Premises, local counsel opinions, along with such other documents, instruments, certificates and agreements, and any other documents necessary to comply with Section 11.06(a) and (b) and as the Trustee or Notes Collateral Agent may reasonably request.
(b)With respect to any fee interest in any Premises owned by the Company or a Guarantor outside the United States on the Issue Date or acquired by the Company or a Guarantor outside the United States after the Issue Date that forms a part of the Collateral, the Company or such Guarantor will be required to take such steps to grant a perfected security interest therein and provide such deliverables as are customary under applicable local law, in each case, to the extent and within the time periods set forth in the Agreed Security Principles or the Canadian Collateral and Guarantee Requirement, as applicable.
Section 11.07 Release of Liens on the Collateral.
(a)Collateral may be released from the Lien and security interest created by the Collateral Documents at any time and from time to time in accordance with the provisions of the Collateral Documents, the Intercreditor Agreements and this Indenture. Notwithstanding anything to the contrary in the Collateral Documents, the Intercreditor Agreements and this Indenture, the Company and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes and the Obligations under this Indenture under any one or more of the following circumstances:
(11)to enable the Company and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Company or a Subsidiary of the Company) to the extent permitted by Section 4.16;
(12)in the case of a Guarantor that is released from its Guarantee with respect to the Notes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(13)with respect to any Collateral that is or becomes an “Excluded Property,” upon it becoming an Excluded Property;
(14)in connection with any enforcement action taken by an Authorized Representative in accordance with the terms of the Intercreditor Agreements or the Collateral Documents; or
(15)as described under Article 9 hereof.
(b)The Liens on the Collateral will be released with respect to the Notes and the Note Guarantees, as applicable:
(16)in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(17)in whole, upon satisfaction and discharge of this Indenture in accordance with Article 12;
(18)in whole, upon a Legal Defeasance or Covenant Defeasance as set forth under Article 8;
(19)in whole or in part, in accordance with the applicable provisions of the Collateral Documents, the Intercreditor Agreements and this Indenture; and
(20)automatically upon release of the Guarantees provided by the German-domiciled Guarantors and the Liens on assets of such entities pursuant to Section 11.07(d);
provided that, in the case of any release in whole pursuant to clauses (1), (2), (3) and (4) of this Section 11.07(b), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Note Guarantee, the Collateral Documents and the Intercreditor Agreements have been paid.
(c)[Reserved]
(d)Solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities, in each case with respect to the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the Notes, may be released with the consent of (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Facility, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the 2025 Credit Facility, and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes, solely in the event that such lenders and holders determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors. Upon and simultaneously with such release, the priority of Liens on the pledged equity of Diebold Germany shall automatically be changed such that the Lien in favor of the Superpriority Credit Facility is senior to the Lien in favor of the 2025 Credit Facility, the 2025 Notes and (for the avoidance of doubt) the Notes (it being understood that the Lien on the pledged equity of Diebold Germany securing the Notes shall at all times be junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes); provided that, no such release will be effective until the applicable proceeding is actually commenced.
(e)The Company and each Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to this Indenture (other than pursuant to Section 11.07(a) or 11.07(b)(4) or (5)) or pursuant to the Collateral Documents: (21)an Officer’s Certificate requesting any such release, filing or other action without recourse, warranty or representation of any kind (express or implied);
(22)an Officer’s Certificate and Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable, to such release have been complied with and that it is permitted for the Trustee and/or the Notes Collateral Agent to execute and deliver the documents requested by the Company in connection with
such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Company; and
(23)a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee).
(f)Upon compliance by the Company and each Guarantor, as the case may be, with the conditions precedent for any release of Collateral as set forth above, and if required by this Indenture upon delivery by the Company or the Guarantors to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Notes Collateral Agent shall, at the Company’s expense, promptly cause to be released and reconveyed to the Company or the relevant Guarantors, as the case may be, the released Collateral, and take, at the Company’s expense, all other actions reasonably requested by the Company in connection therewith. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled to conclusively rely.
Section 11.08 Information Regarding Collateral.
(a)The Company will furnish to the Notes Collateral Agent, with respect to the Company or any Guarantor, promptly (and in any event within 10 days of such change or such longer period as then permitted under the facility (for the purposes of this paragraph, the “controlling facility”) governing that series of Indebtedness for which the Controlling Collateral Agent (as defined under the applicable Intercreditor Agreement) for any applicable Intercreditor Agreement acts as “collateral agent”) written notice of any change in such Person’s (1) corporate or organization name, (2) jurisdiction of organization or formation or the location of its registered office, principal place of business or chief executive office, (3) identity or corporate structure or (4) organizational identification number. The Company and the Guarantors will agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made, or will have been made within 10 days following such change (or such longer period as then permitted under the controlling facility) or within any applicable statutory period, under the Uniform Commercial Code, the PPSA and any other applicable laws that are required in the Collateral Documents in order for the Collateral to be made subject to the Lien of the Notes Collateral Agent under the Collateral Documents in the manner and to the extent required by this Indenture or any of the Collateral Documents and shall take all necessary action so that such Lien is perfected with the same priority as immediately prior to such change to the extent required by the Collateral Documents. The Company also agrees promptly to notify the Notes Collateral Agent in writing if any material portion of the Collateral is damaged, destroyed or condemned in a manner which would reasonably be expected to have a material adverse effect.
Section 11.09 Collateral Documents and Intercreditor Agreements.
(a)The provisions in this Indenture relating to Collateral are subject to the provisions of the Collateral Documents and the Intercreditor Agreements. The Company, the Guarantors, the Trustee, the Notes Collateral Agent and, by their acceptance of the Notes, the Holders acknowledge and agree to be bound by the provisions of the Collateral Documents and the Intercreditor Agreements.
(b)Notwithstanding anything herein to the contrary, (i) the Liens and security interests granted to the Notes Collateral Agent on the Shared Collateral (as defined in the Multi Lien Intercreditor Agreement) are expressly subject and subordinate to the Liens and security interests granted in favor of the First Priority Secured Parties (as defined in the Multi Lien Intercreditor Agreement) and the Second Priority Secured Parties (as defined in the Multi Lien Intercreditor Agreement), and (ii) the exercise of any right or remedy by the Notes Collateral Agent or any other party hereunder in respect of such Shared Collateral is subject to the limitations and provisions of the Multi Lien Intercreditor Agreement. In the event of any conflict between the terms of the Multi Lien Intercreditor Agreement and the terms of this Agreement, the terms of the Multi Lien Intercreditor Agreement shall govern.
(c)Notwithstanding anything herein to the contrary, (i) the Liens and security interests granted to the Notes Collateral Agent on the Shared Collateral (as defined in the Non-Released Multi Lien Intercreditor Agreement) are expressly subject and subordinate to the Liens and security interests granted in favor of the First Priority Secured Parties (as defined in the Non-Released Multi Lien Intercreditor Agreement), and (ii) the exercise of any right or remedy by the Notes Collateral Agent or any other party hereunder in respect of such Shared Collateral is subject to the limitations and provisions of the Non-Released Multi Lien Intercreditor Agreement. In the event of any conflict between the terms of the Non-Released Multi Lien Intercreditor Agreement and the terms of this Indenture, the terms of the Non-Released Multi Lien Intercreditor Agreement shall govern.
Section 11.10 Suits to Protect the Collateral.
Subject to the provisions of Article 7, the Collateral Documents and the Intercreditor Agreements, the Trustee may direct the Notes Collateral Agent to take all actions it determines in order to:
(a)
enforce any of the terms of the Collateral Documents; and hereunder.
(b)collect and receive any and all amounts payable in respect of the Obligations
Subject to the provisions of the Collateral Documents and the Intercreditor Agreements,
the Trustee and the Notes Collateral Agent shall have the power to institute and to maintain such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to prevent any impairment of the Collateral by an acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this Section
11.10 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
Section 11.11 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 11.12 Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser
or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 11 to be sold be under any obligation to ascertain or inquire into the authority of the Company or the applicable Guarantor to make any such sale or other transfer.
Section 11.13 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 11 upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 11; and if the Trustee or the Notes Collateral Agent shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee or the Notes Collateral Agent.
Section 11.14 Spanish Particularities in Relation to any Spanish Collateral Documents.
(a)By their acceptance of the Notes, each of the Holders hereby:
(24)Appoints each of the Notes Collateral Agent and/or the Trustee, as applicable, to be its mandatario (empowered representative) for the purpose of executing any Spanish Collateral Document in the name and on behalf of the Holders, with the power to determine and agree any term and condition of such Spanish Collateral Document, execute any other agreement or instrument, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, enforcement and release of the security created there under in the name and on behalf of the Holders; and
(25)undertakes to ratify and approve any such action taken in the name and on behalf of the Holders by the Notes Collateral Agent and/or the Trustee acting in such capacity.
(b)For the above purposes, each of the Holders shall, if so requested by the Notes Collateral Agent and/or the Trustee, as applicable:
(26)grant a power of attorney in favor of the Notes Collateral Agent and/or the Trustee entitling each of them to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Collateral Document; and
(27)notarize and apostille this power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain).
(c)Each of the Holders hereby authorizes the Notes Collateral Agent and/or the Trustee, as applicable (whether or not by or through employees or agents):
(28)to exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Notes Collateral Agent and/or the Trustee by the Spanish Collateral Documents together with such powers and discretions as are reasonably incidental thereto; and
(29)to take such action on its behalf as may from time to time be authorized under or in accordance with the Spanish Collateral Documents.
(d)To the extent any Holder is unable to grant such powers referred to above or in any other provision of this Indenture to the Notes Collateral Agent and/or the Trustee, each such Holder irrevocably undertakes before the Notes Collateral Agent, the Trustee and the other Holders to appear, carry out any action and execute any document needed or convenient with the Notes Collateral Agent and/or the Trustee to enable the Notes Collateral Agent and/or the Trustee to exercise any right, power, authority or discretion vested in it as Notes Collateral Agent and/or the Trustee, as applicable, pursuant to this Indenture and to execute any document or instrument including any Spanish Public Document.
ARTICLE 12 SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
(a)This Indenture will be discharged, and will cease to be of further effect as to all Notes and Note Guarantees issued hereunder, when either:
(30)all Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company) have been delivered to the Trustee for cancellation; or
(31)(A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise, will become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Paying Agent, as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption, as the case may be;
(B)no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(C)the Company or any Guarantor has paid or caused to be paid all sums payable by the Company under this Indenture; and
(D)the Company has delivered irrevocable instructions to the Trustee and the Paying Agent to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
(b)In addition, the Company shall deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent to satisfaction and discharge have been satisfied. Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with
Section 12.02 Application of Trust Money.
(a)Subject to the provisions of the Intercreditor Agreements and Section 8.06, all money deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other funds except to the extent required by law.
(b)If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 12.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01; provided that if the Company has made any payment of principal, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent, as the case may be.
ARTICLE 13 MISCELLANEOUS
Section 13.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Trust Indenture Act Section 318(c) in respect of Sections of the Trust Indenture Act that are incorporated by reference in this Indenture pursuant to Section 1.04, the imposed duties shall control upon and after, but not before, the qualification of this Indenture under the Trust Indenture Act.
Section 13.02 Notices.
(a)Any notice or communication to the Company, any Guarantor, the Trustee or the Notes Collateral Agent is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail (certified or registered, return receipt requested), postage prepaid, or overnight air courier guaranteeing next day delivery or (3) sent by electronic transmission, to its address set forth below:
if to the Company or any Guarantor:
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
North Canton, Ohio 44720-1507 Fax No.: (330) 490-6823
Email: james.barna@dieboldnixdorf.com Attention: James Barna
with a copy to:
Sullivan & Cromwell LLP 125 Broad Street
New York, NY 10004 Fax No: (212) 291-9219
Email: blauta@sullcrom.com Attention: Ari Blaut
if to the Trustee:
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Email: david.schlabach@usbank.com Attention: David A. Schlabach
if to the Notes Collateral Agent:
GLAS Americas LLC
3 Second Street, Suite 206 Jersey City, NJ 07311
Email: TMGUS@glas.agency; clientservices.americas@glas.agency Telephone: +1 (201) 839-2181
Attention: Transaction Management
The Company, any Guarantor, the Trustee or the Notes Collateral Agent, by like notice, may designate additional or different addresses for subsequent notices or communications.
(b)All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; on the first date of which publication is made, if by publication; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; the next Business Day after timely delivery to the courier, if mailed by overnight air courier guaranteeing next day delivery; when receipt acknowledged, if sent by electronic transmission; provided that any notice or communication delivered to the Trustee or the Notes Collateral Agent shall be deemed effective upon actual receipt thereof.
(c)Any notice or communication to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to its address shown on the Note Register or by such other delivery system as the Trustee agrees to accept. Any notice or communication shall also be so mailed to any Person described in Trust Indenture Act Section 313(c), to the extent required by the Trust Indenture Act. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
(d)Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee and the Notes Collateral Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(e)Where this Indenture provides for notice of any event to a Holder of a Global Note, such notice shall be sufficiently given if given to the Depositary for such Note (or its designee), according to the Applicable Procedures, if any, prescribed for the giving of such notice.
(f)Where this Indenture provides for notice of any event to a Holder of an Attached Note, such notice shall be sufficiently given if given to the Units Trustee and the Holders of Units (as defined under the Unit Agreement).
(g)The Trustee and the Notes Collateral Agent agree to accept and act upon notice, instructions or directions pursuant to this Indenture sent by electronic transmission; provided, however, that (1) the party providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee and the Notes Collateral Agent in a timely manner, and (2) such originally executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions. The Trustee and the Notes Collateral Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Notes Collateral Agent’s reasonable reliance upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or directions.
(h)If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
(i)If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee, the Notes Collateral Agent and each Agent and the Units Trustee prior to April 1, 2024 at the same time.
Section 13.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to Trust Indenture Act Section 312(b) with other Holders with respect to their rights under this Indenture or the Notes. The Company, the Guarantors, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act Section 312(c).
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the Trustee or the Notes Collateral Agent to take any action under this Indenture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee or the Notes Collateral Agent:
(a)an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as the case may be (which shall include the statements set forth in Section 13.05), stating that, in the opinion of the signer(s), all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as the case may be (which shall include the statements set forth in Section 13.05), stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with; provided that subject to Section 5.01(c), no Opinion of Counsel shall be required in connection with the addition of a Guarantor under this Indenture upon execution and delivery by such Guarantor, the Trustee and the Notes Collateral Agent of a supplemental indenture to this Indenture, the form of which is attached as Exhibit C.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.07 or Trust
Indenture Act Section 314(a)(4)) shall comply with the provisions of Trust Indenture Act Section 314(e) and shall include:
(a)a statement that the Person making such certificate or opinion has read such covenant or condition;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees, Members, Partners and Shareholders.
No past, present or future director, officer, employee, incorporator, member, partner or shareholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or any Guarantor (other than the Company in respect of the Notes and each Guarantor in respect of its Note Guarantee) under the Notes, the Note Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.08 Governing Law.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.09 Consent to Jurisdiction and Service of Process; Waiver of Jury Trial.
EACH PARTY HEREBY IRREVOCABLY SUBMITS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.10 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12 Successors.
All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Notes Collateral Agent in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06.
Section 13.13 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 13.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.16 PDF Delivery of Signature Pages.
The exchange of copies of this Indenture and of signature pages by portable document format (“PDF”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.17 U.S.A. PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 13.18 Payments Due on Non-Business Days.
In any case where any Interest Payment Date, redemption date or repurchase date or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest on the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, redemption date or repurchase date, or at the Stated Maturity of the Notes, provided that no interest will accrue for the period from and after such Interest Payment Date, redemption date, repurchase date or Stated Maturity, as the case may be.
Section 13.19 Spanish Provisions Relating to Executive Proceedings.
(a)Spanish Public Documents
At the reasonable request of the Trustee or the Notes Collateral Agent, this Indenture, the Notes, each Spanish Collateral Document, and any other document relating to any of the above (as well as any supplemental indentures, amendments hereto or thereto and any accession deeds or joinder agreements) shall be formalized as a Spanish Public Document. At the reasonable request of the Trustee or the Notes Collateral Agent, each Spanish Guarantor also undertakes to grant any public or private document required for the purposes of or in relation to such Spanish Public Document. Any costs and expenses relating to such formalization shall be paid and satisfied by the relevant Spanish Guarantor in accordance with this Indenture. The costs of issuance of the first copies (with and without enforcement title) of such Spanish Public Document shall be borne by the relevant Spanish Guarantors and the cost regarding the issuance of additional copies will be borne by the Party requesting such additional copies. Each Spanish Guarantors undertakes that the Spanish Public Document shall state any conditions that any of the Trustee or the Notes Collateral Agent reasonably considers necessary or convenient in respect of the enforceability of this Indenture, the Notes, or the Spanish Collateral Documents referred to in article 517 et seq of the Spanish Civil Procedural Law.
(b)Enforcement proceedings
(i)For the purpose of art. 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that: (A) the amount due and payable under this Indenture that may be claimed in any executive proceedings will be contained in a certificate setting out the relevant calculations and determinations provided by the Trustee, the Notes Collateral Agent and/or the Holders and will be based on the accounts maintained by such the Trustee
and/or the Notes Collateral Agent (as applicable) in connection with this Indenture (or any Supplemental Indenture or amendment thereto); (B) the Trustee, the Notes Collateral Agent and/or the Holders may (at the cost of the relevant Spanish Guarantor) have the certificate notarized evidencing that the calculations and determinations have been effected; and (C) the Trustee, the Notes Collateral Agent and/or the Holders may claim the total amount of the principal and interest due if there is a default in the repayment of any instalment of principal or interest.
(ii)The Trustee or the Notes Collateral Agent may start, where applicable, executive proceedings (procedimiento ejecutivo) in Spain, in connection with or relating to this Indenture (or any Supplemental Indenture or amendment thereto) or the relevant Supplemental Indenture or amendment thereto, by providing to the relevant court the documents specified in article 573 of the Spanish Civil Procedural Law, namely: (A) an original notarial copy of this Indenture or the relevant Supplemental Indenture or amendment thereto; (B) a notarial document (acta notarial) incorporating the certificate of the Trustee or the Notes Collateral Agent referred to in paragraph (i) above for the purposes of Article 572 of the Spanish Civil Procedural Law; and (B) evidence that the relevant Spanish Guarantor has been notified of the amount which is due and payable resulting from the certificate (e.g., by means of a notarial document (acta notarial)).
(iii)The Spanish Guarantors hereby expressly authorize the Notes Collateral Agent and the Trustee (and each Holder, as appropriate) to request and obtain certificates and documents issued by the notary who has formalized this Indenture (or any Supplemental Indenture or amendment thereto) in order to evidence its compliance with the entries of his registry-book and the relevant entry date for the purpose of numbers 4º or 5º (as applicable) of Article 517 of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the Spanish Guarantor in the manner provided under this Indenture.
(iv)For the purposes of article 540.2 of the Spanish Civil Procedural Law, the Spanish Guarantors acknowledge and accept that, provided that the relevant assignment, transfer or change of Holders has been made in accordance with the terms of this Indenture, any assignment, transfer or change of Holders shall be duly and sufficiently evidenced to any Spanish court by means of a certificate issued by the Notes Collateral Agent or the Trustee confirming who the Holders are in each moment, and therefore, those who are certified as Holders by the Notes Collateral Agent or the Trustee shall be able to initiate enforcement in Spain through procedimiento ejecutivo without further evidence being required.
(v)The default interest agreed under this Indenture shall also be the post- judgment interest rate for purposes of the provisions of article 576.1 of the Spanish Civil Procedural Law.
(vi)Notwithstanding the provisions of Section 13.08 (Governing Law) above, none of the Holders will be prevented from initiating enforcement proceedings before the Spanish courts against the Spanish Guarantors, which is hereby expressly acknowledged and accepted by the Spanish Guarantors.
Section 13.20 Parallel Debt; Parallel Debt Owed to the Notes Collateral Agent.
This Section 13.20 is included in this Indenture solely for the purpose of ensuring the validity and effect of certain security rights governed by the laws of the Netherlands, Poland and Germany granted or to be granted pursuant to the applicable Collateral Documents and, for the avoidance of doubt, shall not limit the rights and remedies provided to the Trustee or the Notes Collateral Agent by the other provisions hereof and the provisions of the other Note Documents.
(a)Each of the Note Parties hereby irrevocably and unconditionally undertakes to pay to the Notes Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties amounts equal to any amounts owing from time to time by that Note Party to any Secured Party under any Note Document as and when those amounts are due for payment under the relevant Note Document (each such payment undertaking of a Note Party in relation to any individual Secured Party, a “Parallel Debt Undertaking”, and all Parallel Debt Undertakings of each Note Party taken together, its “Parallel Debt”).
(b)Each of the Note Parties and the Notes Collateral Agent acknowledge that the obligations of each Note Party under any Parallel Debt Undertaking are several and are separate and independent from, and shall not in any way limit or affect, the obligations of that Note Party to that relevant Secured Party under any Note Document that corresponds to the relevant Parallel Debt Undertaking (its “Corresponding Debt”) nor shall the amounts for which each Note Party is liable under any Parallel Debt Undertaking be limited or affected in any way by its Corresponding Debt provided that:
(32)the Notes Collateral Agent shall not demand payment with regard to the Parallel Debt Undertaking of a Note Party to the extent that the relevant Holder’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
(33)a Secured Party shall not demand payment with regard to the Corresponding Debt of a Note Party to the extent that such Note Party’s Parallel Debt Undertaking has been irrevocably paid or (in the case of guarantee obligations) discharged.
(34)each Parallel Debt Undertaking shall cover, in an anticipatory manner as to its scope, any future changes in the relevant Corresponding Debt, in particular any such changes resulting from any future increase of any loan or note facility, any future extension of the agreed maturity thereof or any future change of the interest rate charged thereunder;
(35)each Parallel Debt Undertaking shall be due and payable at any time from the date of this Indenture in an amount which equals the amount and currency or currencies of the relevant Corresponding Debt that is due and payable at the same time as the relevant Corresponding Debt; and
(36)each Parallel Debt Undertaking shall remain effective notwithstanding any transfer or assumption of its Corresponding Debt in whole or in part to or by any third party, irrespective of whether any such transfer or assumption is effected by way of assignment or assignment and transfer by way of assumption of contract or otherwise.
(c)The Notes Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral under the Collateral Documents granted under the Note Documents to the Notes Collateral Agent to secure the Parallel Debt Undertakings is granted to the Notes Collateral Agent in its capacity as creditor of each Parallel Debt Undertaking and shall not be held on trust.
(d)All monies received or recovered by the Notes Collateral Agent pursuant to this Section 13.20, and all amounts received or recovered by the Notes Collateral Agent from or by the enforcement of any collateral under the Collateral Documents granted to secure any Parallel Debt Undertaking, shall be applied in accordance with this Indenture.
(e)Without limiting or affecting the Notes Collateral Agent’s rights against the Note Parties (whether under this Section 13.20 or under any other provision of the Note Documents), each Holder acknowledges that:
(37)nothing in this Section 13.20 shall impose any obligation on the Notes Collateral Agent to advance any sum to any Holder or otherwise under any Note Document, except in its capacity as lender;
(38)for the purpose of any vote taken under any Note Document, the Notes Collateral Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity as a lender; and
(39)for purposes of any Dutch Collateral Document, any resignation by the Notes Collateral Agent is not effective with respect to its rights under the Parallel Debt until all rights and obligations under the Parallel Debt have been assigned to and assumed by the successor agent appointed in accordance with this Indenture.
(f)The Notes Collateral Agent will reasonably cooperate in transferring its rights and obligations under the Parallel Debt to a successor agent in accordance with this Indenture and will reasonably cooperate in transferring all rights and obligations under any Collateral Document to such successor agent. All parties to this Indenture hereby, in advance, irrevocably grant their cooperation (medewerking) to such transfers of rights and obligations by the Notes Collateral Agent to a successor agent in accordance with this Indenture.
(g)The provisions of this Section 13.20 may not apply for any Collateral Documents governed by French law.
Section 13.21 Judgment Currency
(a)If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, under applicable law that the rate of exchange used shall be that at which in accordance with normal banking procedures the Trustee could purchase the first currency with such other currency in the city in which it normally conducts its foreign exchange operation for the first currency on the Business Day preceding the day on which final judgment is given.
(b)The obligation of the Note Parties in respect of any sum due from them to the Trustee or any Holder hereunder shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Indenture (the “Indenture Currency”), be discharged only to the extent that on the Business Day following receipt by the Trustee of any sum adjudged to be so due in the Indenture Currency the Trustee may in accordance with normal banking procedures purchase the Indenture Currency with the Judgment Currency; if the amount of Indenture Currency so purchased is less than the sum originally due to the Trustee in the Agreement Currency, the Note Parties agree notwithstanding any such judgment to indemnify the Trustee against such loss, and if the amount of the Indenture Currency so purchased exceeds the sum originally due to the Trustee, the Trustee agrees to remit to the Note Parties such excess.
[Signatures on following page]
| | | | | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
/s/ Jeffrey Rutherford |
| Name: Jeffrey Rutherford |
| Title: Executive Vice President and Chief Financial Officer |
| | | | | |
DIEBOLD GLOBAL FINANCE CORPORATION |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD SST HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
GRIFFIN TECHNOLOGY INCORPORATED |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Vice President and Secretary |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD SELF-SERVICE SYSTEMS |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF CANADA, LIMITED |
By: |
/s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| | | | | |
DIEBOLD CANADA HOLDING COMPANY INC. |
By: |
/s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD NIXDORF B.V. |
By: |
/s/ Helena Mueller |
| Name: Helena Mueller |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF GLOBAL HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF SOFTWARE PARTNER B.V. |
By: |
/s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD NIXDORF SOFTWARE C.V. |
By Diebold Nixdorf Software Partner B.V. as General Partner |
| By: | /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. |
By: |
/s/ Hendrik Schouten |
| Name: Hendrik Schouten |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF S.A.S. |
By: |
/s/ Hervé Grelet |
| Name: Hervé Grelet |
| Title: duly authorized |
| | | | | |
DIEBOLD NIXDORF HOLDING GERMANY GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
WINCOR NIXDORF INTERNATIONAL GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD NIXDORF SYSTEMS GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
DIEBOLD NIXDORF DEUTSCHLAND GMBH |
By: |
/s/ Roland Sorke |
| Name: Roland Sorke |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF LOGISTICS GMBH |
By: |
/s/ Christina Wieber |
| Name: Christina Wieber |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH |
By: |
/s/ Christina Wieber |
| Name: Christina Wieber |
| Title: Managing Director |
| | | | | |
WINCOR NIXDORF FACILITY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG |
By Diebold Nixdorf Security GmbH as General Partner |
| By: | /s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH |
By: |
/s/ Jörg Kleinschmidt |
| Name: Jörg Kleinschmidt |
| Title: Managing Director |
| | | | | |
IP MANAGEMENT GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SECURITY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD NIXDORF OPERATIONS GMBH |
By: |
/s/ Michael Schütt |
| Name: Michael Schütt |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF FINANCE GERMANY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | | | | |
DIEBOLD NIXDORF S.R.L. |
By: |
/s/ Jonathan Leiken |
Name: Jonathan Leiken |
Title: Authorized Signatory |
Place of Execution: | United States of America |
| | | | | |
DIEBOLD NIXDORF SP. Z.O.O. |
By: |
/s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF BPO SP. Z.O.O. |
By: |
/s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Managing Director |
| | |
[Signature Page to 2026 Notes Indenture] |
| | | | | |
DIEBOLD NIXDORF S.L. |
By: |
/s/ D. Luis Carlos Rodríguez Argüelles |
| Name: D. Luis Carlos Rodríguez Argüelles |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF AB |
By: |
/s/ Rene Lauxtermann |
| Name: Rene Lauxtermann |
| Title: Director |
| | | | | |
DIEBOLD NIXDORF (UK) LIMITED |
By: |
/s/ Paul George Young |
| Name: Paul George Young |
| Title: Director |
| | |
[Signature Page to 2026 Notes Indenture] |
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
| | | | | |
| By: | /s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Vice President |
| | |
[Signature Page to 2026 Notes Indenture] |
GLAS AMERICAS LLC, as Notes Collateral Agent
| | | | | |
| By: | /s/ Jeffrey Schoenfeld |
| Name: Jeffrey Schoenfeld |
| Title: Vice President |
| | |
[Signature Page to 2026 Notes Indenture] |
APPENDIX A
PROVISIONS RELATING TO NOTES
Section 1.1 Definitions.
(a)Capitalized Terms.
Capitalized terms used but not defined in this Appendix A have the meanings given to them in this Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.
“Distribution Compliance Period,” means, with respect to any Note, the period of 40 consecutive days beginning on and including the later of (a) the day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Company to the Trustee, and (b) the date of issuance with respect to such Note or any predecessor of such Note.
“Euroclear” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.
“IAI” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Regulation S” means Regulation S promulgated under the Securities Act. “Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act. “United States” means the United States of America.
“Unrestricted Global Note” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.
“U.S. person” means a “U.S. person” as defined in Regulation S.
(b)Other Definitions.
| | | | | |
Term: | Defined in Section: |
“Agent Members” ........................................................................................ | 2.1(c) |
“Definitive Notes Legend”........................................................................... | 2.2(e) |
“ERISA Legend” ......................................................................................... | 2.2(e) |
“Global Note” ............................................................................................ | 2.1(b) |
“Global Notes Legend” ............................................................................... | 2.2(e) |
“IAI Global Note” ....................................................................................... | 2.1(b) |
“Regulation S Global Note” ........................................................................ | 2.1(b) |
“Regulation S Notes”................................................................................... | 2.1(a) |
“Restricted Notes Legend” .......................................................................... | 2.3(e) |
“Rule 144A Global Note”............................................................................ | 2.1(b) |
“Rule 144A Notes” ..................................................................................... | 2.1(a) |
Section 2.1 Form and Dating
(a)The Notes issued on the date hereof shall be offered and sold by the Company in reliance on Section 4(a)(2) of the Securities Act to QIBs and IAIs that are not QIBs in reliance on Regulation S. The Notes may be resold initially only to (1) QIBs in reliance on Rule 144A (“Rule 144A Notes”), (2) IAIs that are not QIBs and that are purchasing for their own account or for the account of another IAI (“IAI Notes”) and (3) Persons other than U.S. persons in reliance on Regulation S (“Regulation S Notes”). Additional Notes may also be considered to be Rule 144A Notes, IAI Notes or Regulation S Notes, as applicable.
(b)Attached Notes and Global Notes.
Attached Notes shall be issued in definitive form and deposited on behalf of the Issuer with the Trustee, as custodian for the beneficial owners, duly executed by the Issuer and authenticated by the Trustee as provided herein, in the form of (1) one or more Attached Notes representing Notes offered and sold by the Issuer to IAIs in reliance on Section 4(a)(2) of the Securities Act, (2) one or more Attached Notes representing Notes offered and sold by the Issuer to Persons other than U.S. persons in reliance on Regulation S, and (3) one or more Attached Notes representing Notes offered and sold to QIBs. The Attached Notes shall remain in such form until such Notes become separable on the relevant Unit Split Date as provided in the Unit Agreement, at which time the number of Notes represented by the relevant Attached Notes as set forth in the “Schedule of Decreases of Principal in the Attached Note” attached thereto shall be decreased to reflect the increase in the number of Separated Notes represented by Global Notes Certificates as provided in the “Schedule of Exchanges of Interests and Transfers of Principal in the Global Note” attached thereto.
Rule 144A Notes shall be issued initially in the form of one or more permanent global Notes in definitive, fully registered form, numbered RA-1 upward (collectively, the “Rule 144A Global Note”) and Regulation S Notes shall be issued initially in the form of one or more global Notes, numbered RS-1 upward (collectively, the “Regulation S Global Note”), in each case without interest coupons and bearing the Global Notes Legend and Restricted Notes Legend, which shall be deposited with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. One or more global Notes in definitive fully registered form without interest coupons and bearing the Global Notes Legend and the Restricted Notes Legend, numbered RIAI-1 upward (collectively, the “IAI Global Note”) shall also be
issued on the Issue Date, deposited with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in this Indenture to accommodate transfers of beneficial interests in the Notes to IAIs subsequent to the initial distribution. The Rule 144A Global Note, the IAI Global Note, the Regulation S Global Note and any Unrestricted Global Note are each referred to herein as a “Global Note” and are collectively referred to herein as “Global Notes.” Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests and Transfers of Principal in the Global Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 of this Indenture and Section 2.2(c) of this Appendix A.
(c)Book-Entry Provisions. This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c) and Section 2.02 of this Indenture and pursuant to an order of the Company signed by one Officer of the Company, authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such Depositary and
(ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as Custodian.
Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(d)Definitive Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer and Exchange.
(a)Transfer and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Registrar with a request:
(i)to register the transfer of such Definitive Notes; or
(ii)to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:
(1)shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(2)in the case of Transfer Restricted Notes, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to
Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend, and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.
(b)Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, together with:
(i)a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto; and
(ii)written instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
the Trustee shall cancel such Definitive Note and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note is not then outstanding, the Company shall issue and the Trustee shall authenticate, upon an Authentication Order, a new applicable Global Note in the appropriate principal amount.
(c)Transfer and Exchange of Global Notes.
(i)The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in such Global Note, or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.
(ii)If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an
amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.
(iii)Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section 2.3 of this Appendix A), a Global Note may not be transferred except as a whole and not in part if the transfer is by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(d)Restrictions on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global Notes.
(i)Transfers by an owner of a beneficial interest in a Rule 144A Global Note or an IAI Global Note to a transferee who takes delivery of such interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Note or a
Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed letter substantially in the form of Exhibit B to the Trustee.
(ii)During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation S Global Note and any applicable securities laws of any state of the U.S. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period. Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.
(iii)Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
(iv)Beneficial interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests in an Unrestricted Global Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A) and/or upon delivery of such legal opinions, certifications and other information as the Company or the Trustee may reasonably request.
(v)If no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Company shall issue and the Trustee shall authenticate, upon an Authentication Order, a new Unrestricted Global Note in the appropriate principal amount.
(vi)In the case of a Global Note or an Attached Note, so long as such Notes are registered in the name of the Depositary or the Trustee (in the case of a Global Note) or the Units Trustee (in the case of an Attached Note), (a) the holders of beneficial interests in the Notes evidenced thereby shall have no rights under the Notes with respect to such Notes held on their behalf by the Depositary, the Trustee or the Units Trustee, as the case may be, and (b) the Depositary or Units Trustee, as the case may be, may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Notes for all purposes whatsoever, except, in each case, to the extent set forth herein. Accordingly, any such owner’s beneficial interest in the Global Notes and Attached Notes will be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or the Agent Members (in the case of Global Notes) or by the Units Trustee (in the case of the Attached Notes), and neither the Issuer nor the Trustee shall have any responsibility with respect to such records maintained by the Depositary or the Agent Members. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary (in the case of any Global Notes) or by the Units Trustee (in the case of any Attached Units) or (ii) impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Global Note. Except as otherwise may be provided in this Indenture, the rights of beneficial owners in a Global Note shall be exercised through the Depositary subject to the Applicable Procedures of the Depositary. Any holder of any Global Note shall, by acceptance of such Global Note, agree that (x) ownership of a beneficial interest in the Notes represented thereby shall be required to be reflected in book-entry form and (y) the transfer and exchange of Global Notes or beneficial interests therein shall be effected through the book-entry system maintained by the Depositary, in accordance with this Indenture and the Notes and the procedures of the Depositary therefor.
(vii)Notwithstanding anything to the contrary herein or in the Unit Agreement, with respect to Attached Notes, upon any transfer of a beneficial interest in one Unit Certificate (as defined in the Unit Agreement) to a beneficial interest in another Unit Certificate in compliance with the applicable provisions of the Unit Agreement and the Units, the Trustee shall reflect on its Registry a corresponding transfer of beneficial interests in a number of Attached Notes equal to the principal amount of Units (including any PIK defined in the Unit Agreement, if applicable) so transferred, with the Attached Notes subject to such transfer having the same transfer restricted statuses as the relevant Units, in the manner contemplated in this Section 2.2 with no delivery of additional instruments, certifications or legal opinions required under this Indenture or the Notes.
(e)Legends.
(i)Except as permitted by Section 2.2(d), this Section 2.2(e) and Section 2.2(i) of this Appendix A, each Note certificate evidencing the Global Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Notes Legend”):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
Each Definitive Note shall bear the following additional legend (“Definitive Notes Legend”): IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note shall bear the following additional legend (“ERISA Legend”):
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE OR ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES (A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
(ii)Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A) and provides such legal opinions, certifications and other information as the Company or the Trustee may reasonably request.
(iii)After a transfer of any Initial Notes or Additional Notes during the period of the effectiveness of a shelf registration statement with respect to such Initial Notes or Additional Notes, as the case may be, all requirements pertaining to the Restricted Notes Legend on such Initial Notes or Additional Notes shall cease to apply and the requirements that any such Initial Notes or Additional Notes be issued in global form shall continue to apply.
(iv)Any Additional Notes sold in a registered offering shall not be required to bear the Restricted Notes Legend.
(f)Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to
such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Registrar (if it is then the Custodian for such Global Note) with respect to such Global Note, by the Registrar or the Custodian, to reflect such reduction.
(g)Obligations with Respect to Transfers and Exchanges of Notes.
(i)To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate, Definitive Notes and Global Notes at the Registrar’s request.
(ii)No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07 of this Indenture), but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.15, 4.16 and 9.05 of this Indenture).
(iii)Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(iv)All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(v)In order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the Restricted Notes Legend and has not been registered under the Securities Act, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Registrar to the effect that no registration under the Securities Act is required in respect of such exchange or transfer or the resale of such interest by the beneficial holder thereof, shall be required to be delivered to the Registrar and the Trustee.
(h)No Obligation of the Trustee.
(i)The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
(h)Component of Units. The Notes will trade together with the Warrants as a “unit security” (the “Units”) on the terms provided in the Unit Agreement until separated on or prior to April 1, 2024 on the terms set forth in the Unit Agreement. As such, the Notes and the Warrants will not be separately transferable until such date of separation. Any Permitted Equity Issuance Prepayment of the Notes (including any and all accrued PIK Interest on such Notes) prior to April 1, 2024 shall result in the immediate cancellation of the Warrants attached thereto, and any refinancing of Notes (including any and all accrued PIK Interest thereon) in connection with a Change of Control prior to April 1, 2024 shall result in the immediate cancellation of the Warrants attached thereto. In the event of any other repayment, repurchase, redemption or other retirement of the Notes, the Warrants shall not be cancelled and shall immediately detach and be freely transferable (subject to applicable securities laws) as provided in the Unit Agreement. On April 1, 2024, the Warrants shall detach automatically, without any action by the holders thereof, from the Notes and shall be separately transferable as of April 1, 2024 (subject to applicable securities laws) as provided in the Unit Agreement.
Section 2.3 Definitive Notes.
(a)A Global Note deposited with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 may be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and the Depositary notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the Company within 90 days of such notice or after the Company becomes aware of such cessation. In addition, any Affiliate of the Company or any Guarantor that is a beneficial owner of all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a written request to the Company and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this Indenture or the Company or Trustee.
(b)Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of $2,000 and integral multiples of $1.00 in excess thereof and registered in such names as the Depositary shall direct. Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise provided by Section 2.2(e) of this Appendix A, bear the Restricted Notes Legend.
(c)The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(d)The Units Trustee, as the registered Holder of an Attached Note, may take any action which a Holder is entitled to take under this Indenture or the Notes, consistent with the proxies or authorization of the holders of the Units in accordance with the terms of the Unit Agreement.
(d) In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
APPENDIX B
AGREED SECURITY PRINCIPLES
1.Agreed Security Principles
(a)Subject to paragraph (b) below, the guarantees and security required to be provided under the Note Documents (i) by any Note Party incorporated in a Foreign Guarantor Jurisdiction (such term as defined below) (a “Foreign Note Party”) or (ii) over the Equity Interests of a Foreign Note Party owned by any Note Party, will in each case, be given in accordance with the security principles set out in this Appendix B (these “Agreed Security Principles”). This Appendix B identifies the Agreed Security Principles and determines the extent and terms of the guarantees and security proposed to be provided (x) by the Foreign Note Parties and (y) in respect of the Equity Interests of Foreign Note Parties owned by any Note Party in relation to the Notes (or any refinancing thereof) and the other Obligations.
(b)To the extent that an interpretation of these Agreed Security Principles or a determination is required to be made hereunder in connection with the delivery of guarantees and security or the terms of the guarantees and security, such determination will be made by the Company and the Notes Collateral Agent and, with respect to any provisions relating to protections or obligations of the Trustee or the Notes Collateral Agent, the Trustee and the Notes Collateral Agent, respectively. For the avoidance of doubt, neither the Notes Collateral Agent nor the Trustee shall have any obligation to ensure that the security and guarantees provided are consistent with these Agreed Security Principles.
2.Guarantees
Subject to the guarantee limitations set out in the Note Documents, and with respect to the Foreign Note Parties, customary limitations in the relevant jurisdiction reasonably agreed by the Company and the Notes Collateral Agent, each guarantee by a Foreign Note Party will be an upstream, cross- stream and downstream guarantee for the Obligations in accordance with, and subject to, the terms of these Agreed Security Principles in each relevant jurisdiction (references to "security" to be read for this purpose as including guarantees).
3.Secured Liabilities
Security documents will secure, subject to local law restrictions, all liabilities of Note Parties under the Note Documents in accordance with, and subject to, the terms of the Agreed Security Principles in each relevant jurisdiction.
4.Overriding Principle
(c)The guarantees and security to be provided in respect of the Note Documents by Foreign Subsidiaries in accordance with these Agreed Security Principles are only to be given by Foreign Subsidiaries which are incorporated in Germany, Belgium, France, England & Wales, Sweden, Spain, Poland, Italy and the Netherlands (each a “Foreign Guarantor Jurisdiction”) and no security or guarantees shall be required to be given by Foreign Subsidiaries not incorporated in Foreign Guarantor Jurisdictions.
(d)The parties agree that the overriding intention, subject to paragraph (a) above, is for security only to be granted by, and shall be limited, to a Foreign Note Party which is
incorporated in a Foreign Guarantor Jurisdiction in respect only over (and in any case only to the extent commercially and legally feasible in such Foreign Guarantor Jurisdiction):
(A)its Required Accounts (without control over use prior to a Default);
(B)its tangible moveable property;
(C)intra-group receivables owed to such Foreign Note Party;
(D)intellectual property owned by such Foreign Note Party;
(E)insurance policies;
(F)account and trade receivables owed to such Foreign Note Party;
(G)the shares and/or quotas owned in such Foreign Note Party by its direct holding company provided that such direct holding company is also a Note Party and shares owned by such Foreign Note Party in its direct subsidiaries;
(H)fee owned real property having a fair market value in excess of
$10,000,000;
(I)in the case of an English Note Party, its goodwill and uncalled capital;
(J)all of its assets by way of a qualifying floating charge (or equivalent) from an English Note Party and any other Foreign Note Party incorporated in a Foreign Guarantor Jurisdiction with a practical equivalent of an English law floating charge;
(K)tort claims, investments and contractual claims against third parties; and
(L)in the case of a security provider incorporated in Sweden, corporate mortgage (Sw. företagshypotek) over corporate mortgage registrations (Sw. företagsinteckingar).
(the “Overriding Principle”) and that no other security shall be required to be given by any other Foreign Note Party or any other person or in relation to any other asset.
(e)Without prejudice to paragraph (b) above, no guarantees shall be required to be granted by and no security shall be required to be granted by or in (i) any Subsidiary that is an Excluded Subsidiary or (ii) any asset that is an Excluded Asset.
(f)In addition, for the avoidance of doubt, no Foreign Note Party incorporated in France shall be under any obligation pursuant to these Agreed Security Principles to grant security interest on any asset if it is reasonably determined by such Foreign Note Party incorporated in France that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered). If it is reasonably determined by the Company and the Notes Collateral Agent that the applicable time and cost of obtaining such opinion would be disproportionate to the benefit accruing to the Holders of obtaining
such security interest, the Foreign Note Party incorporated in France shall not launch the works council’s consultation process and shall not be under any obligation to grant the security interest on such relevant asset.
5.Governing Law and Jurisdiction of Security
(g)Except as described below, all security will be governed by the law of the jurisdiction of incorporation of the applicable grantor of the security.
(h)Share security over any subsidiary will be governed by the law of the place of incorporation of that subsidiary or of the applicable grantor, provided that such place of incorporation is a Foreign Guarantor Jurisdiction, the United States or Canada.
(i)Any security in respect of inventory and if reasonably required by the Notes Collateral Agent, other Required Accounts shall be governed by the law of the jurisdiction in which it is located, provided that the location is a Foreign Guarantor Jurisdiction, the United States or Canada.
(j)Security in relation to any receivables will be governed by the laws of the governing law of such receivables or the place of incorporation of the applicable grantor, provided that such law is the law at a Foreign Guarantor Jurisdiction.
(k)No action in relation to security (including any perfection step, further assurance step, filing or registration) will be required in jurisdictions where the applicable grantor of the security is not incorporated other than in the United States, Canada or another Foreign Guarantor Jurisdiction.
6.Terms of security documents
The following principles will be reflected in the terms of any security taken in connection with the Notes (or any refinancing thereof):
(l)security will be ranking in accordance with the lien priorities in any applicable Intercreditor Agreement;
(m)security will, to the extent possible under local law, not be enforceable until the occurrence of an Event of Default (an “Applicable Event”) which is continuing (and, with respect to security governed by the laws of the Netherlands, constitutes a default in the performance of the secured obligations);
(n)with respect to security interests granted by an Italian Note Party (or governed by Italian law) and a Spanish Note Party, an Applicable Event will be a payment default or the acceleration of the relevant secured obligations;
(o)unless as otherwise required to perfect the security or required by law (e.g. with respect to the power of attorney for the purposes of the notarization of the equity pledge security of any German Note Party or the Spanish law irrevocable power of attorney to be granted in relation to the Spanish law Security), the beneficiaries of the security or any agent will only be able to exercise a power of attorney granted by a Note Party and to exercise any withdrawal rights in respect of a secured asset following (1) the occurrence of an Applicable Event which is continuing or (2) if the relevant Note Party has failed to comply
with its obligations under the relevant security documents within five Business Days of request;
(p)the security documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Note Documents; accordingly:
(i)they should not contain identical or additional representations, undertakings or indemnities (including in respect of insurance, information, maintenance or protection of assets or the payment of fees, costs and expenses) unless required for the creation or perfection of security, to maintain effective security or customary in the relevant jurisdiction;
(ii)notwithstanding anything to the contrary in any security document, the terms of a security document shall not operate or be construed so as to prohibit or restrict any transaction, matter or other step permitted by the Note Documents or where the applicable level of holder consent required by the relevant Note Document (“Required Holder Consent”) has been obtained and the Notes Collateral Agent shall (pursuant to its authority under Section 11.07 of the Indenture, and solely in accordance therewith), upon the reasonable request of a Foreign Note Party that grants Collateral (a “Chargor”) (to the extent requested by the Notes Collateral Agent), enter into such documentation and/or take such other action as is required by a Chargor (acting reasonably) in order to facilitate any such transaction, matter or other step, including by way of executing any confirmation, consent to dealing, release or other similar or equivalent document, provided that any costs and expenses incurred by the Notes Collateral Agent entering into such documentation and/or taking such other action at the request of such Chargor pursuant to this paragraph shall be for the account of such Chargor, in accordance with the costs and expenses provisions set out in the Indenture and such provision shall be included in each security document; and
(iii)the security documents should not operate so as to require additional consents or authorisations from the Holders;
(q)security will, where possible, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges or notices to be delivered in respect of future acquired assets in order for effective security to be created over that class of asset, such supplemental pledges or notices will (unless otherwise customary in the relevant jurisdiction) be provided periodically at intervals no more frequent than quarterly (unless required more frequently under local law or local market practice, including if required due to the shorter maturity of the relevant future acquired asset) (or with such higher frequency specified by the Notes Collateral Agent after the occurrence of an Applicable Event);
(r)the security documents will provide that, upon the occurrence of the date on which all Obligations (or Secured Obligations (as defined in the ABL Intercreditor Agreement, in the case of any Common Lien, as defined in the ABL Intercreditor Agreement)) (in each case other than in respect of contingent indemnification and expense reimbursement claims not then due) have been paid in full, the Notes Collateral Agent shall, at the request of and the cost and expense of the Company, and solely with respect to the Obligations (or Secured Obligations), release, reassign or retransfer the respective asset or class of assets to the relevant Note Party, and shall take all actions and execute any and all documents as may
be necessary or convenient to evidence the cancellation, release and termination of all guarantees and security pursuant to Sections 10.06 and 11.07 of the Indenture without having to make or being deemed to make any representation or warranty, whether express or implied, with respect to the relevant payor’s financial soundness and/or any asset or class of assets so released and subject to the rights of any person having prior rights over any such assets; any such release, reassignment, retransfer, cancellation or termination is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in bankruptcy, insolvency, liquidation, administration or otherwise, without limitation, then such security or guarantee will continue or be reinstated as if the release, reassignment, retransfer, cancellation or termination had not occurred;
(s)unless required by local law or customary in the relevant jurisdiction, the circumstances in which the Collateral shall be released should not be dealt with in individual security documents but, if so required, shall, except to the extent required by local law, be the same as those set out in the Note Documents;
(t)other than in each case of any German law share pledge agreement, each security document must contain a clause which records that if there is a conflict between the security document, the Indenture or any applicable Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Indenture and the applicable Intercreditor Agreement will take priority over the provisions of the security document unless and to the extent it would prejudice the legality, creation, priority, perfection, validity or enforceability of such security document or the security created under or pursuant to the security document, save with respect to the release of the security interests where applicable law and market practice require certain additional steps in order to address local law claw back issues (e.g. comfort documents);
(u)each of the security documents will, to the extent possible under local law, include a provision that provides that (i) all rights, protections, limitations on liability, exculpations and indemnifications provided or otherwise afforded to the Trustee and the Notes Collateral Agent under the Indenture, including, without limitation Article 7 of the Indenture, shall apply in all respects to the Notes Collateral Agent as chargee, security trustee or pledgee under the applicable security document, (ii) the applicable security document shall be subject to the provisions of Section 7.07 of the Indenture, which provisions shall apply to the applicable security document mutatis mutandis as though fully set forth therein, with each reference to the Issuer or Company, as applicable, being read to include the applicable chargor or pledgor, (iii) the Notes Collateral Agent may act and exercise rights under the applicable security document, but shall not be obligated to act or exercise rights under the applicable security documents (and shall not incur liability for failure to act or exercise rights) unless directed in writing by the Holders pursuant to Article 6 of the Indenture (or otherwise in accordance with the Indenture); provided that the Notes Collateral Agent shall not be required to take any action or exercise any right that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose the Notes Collateral Agent to liability (financial or otherwise) or that is contrary to any Note Document or applicable laws (for the avoidance of doubt, the Notes Collateral Agent may refrain from acting in accordance with any instructions of any Holder or group of Holders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Note Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions);
(v)subject to (or to the extent permitted by) the applicable law and in accordance with market practice, the terms of the security documents shall secure the Obligations as such Obligations (and/or the Indenture or other Note Documents) (or, where relevant, parallel debt derived therefrom) may be amended, amended and restated, restated, supplemented, replaced, renewed, restructured, extended, refunded, refinanced or otherwise modified from time to time (including without limitation, where such transactions result in any increases or decreases of the principal amount of the Obligations, any extensions of maturity, any changes in interest rates or other economic terms, or any changes in the Secured Parties, Holders or Holders’ agents) so as to minimize the need for any additional security documents, confirmations, reaffirmations, supplements, amendments or other actions with respect to such security documents in connection with the foregoing; and
(w)each of the security documents will provide that all proceeds will be applied in accordance with the Intercreditor Agreements and Section 6.13 of the Indenture.
7.Shares and/or quotas
(x)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, the legal title of the shares and/or quotas subject to any security will remain with the relevant grantor of the security (unless transfer of title on granting such security is customary in the applicable jurisdiction and does not result in any risk of liability to the Notes Collateral Agent (as advised by the advisors to the Notes Collateral Agent or Holders)).
(y)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, any grantor of share security will be permitted to retain and to exercise all voting rights and powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition, provided that (to the extent permitted by the applicable law) such grantor must not exercise any such voting rights and powers in any manner which:
(i)has the effect of changing the rights of such shares or of any related rights with respect to such shares, unless specifically permitted by the Indenture; or
(ii)adversely affects the validity or enforceability of such share security or causes an Event of Default to occur, or is otherwise materially prejudicial to the interests of the Notes Collateral Agent and/or the Secured Parties.
(z)Where customary and applicable as a matter of law and following a request by the Notes Collateral Agent, as soon as reasonably practicable (taking into account any stamping, endorsement in blank, assignment in blank or other transfer requirements) following the granting of any share security over certificated shares or quotas, the applicable share certificate (or other documents evidencing title to the relevant shares, including any shareholder's register, as applicable) and a stock transfer form executed in blank (or applicable law equivalent) will be provided to the Notes Collateral Agent.
(aa)No security shall be required to be granted over any shares or ownership interests in any person that are not directly owned by its immediate holding company.
(ab)If required under local law, security over shares and/or quotas will be notarised and registered subject to the general principles set out in these Agreed Security Principles. In
particular, but not limited to, to the extent applicable, security over shares and/or quotas issued by a Spanish company will be registered in the relevant registry book of shareholders (libro registro de acciones nominativas) and/or the relevant registry book of quotaholders (libro registro de socios) or with the relevant depositary entity and on the titles to property over the shares/quotas; with respect to shares in Polish companies, the information on establishment of share security will be entered into the book of shares (księga udziałów) and into the list of shareholders (lista wspólników), which will be filled together with motions for registrations of registered pledges over shares in each Polish company within the relevant registry courts.
(ac)Unless the restriction is required by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer, approval requirements or the registration of the transfer of the shares on enforcement of the security granted over them or to allow exercising voting rights by the Notes Collateral Agent or to allow the Notes Collateral Agent to convene a general meeting. To the extent applicable, the applicable grantor of the security will use its commercially reasonable efforts to obtain the registration of any needed amendment of the by-laws with the relevant mercantile registry as soon as practicable.
8.Bank accounts
(ad)Until an Applicable Event has occurred and is continuing, unless the Indenture expressly provides for any specific account (by reference to its purpose) to be subject to specific restrictions on use, any Note Party will be free to deal, operate and transact business in relation to any bank accounts over which it grants security (including opening and closing accounts) until the occurrence of an Applicable Event which is continuing.
(ae)If required by local law to create or perfect the security, notice of the security will be served on the account bank in relation to applicable accounts within five (5) Business Days of the creation or intended creation of the security over such account, and the applicable grantor of the security will use its commercially reasonable efforts to obtain a signed acknowledgement of that notice. Irrespective of whether notice of the security is required for perfection, if the service of notice would prevent any member of the Group from using a bank account in the course of its business, no notice of security will be served until the occurrence of an Applicable Event that is continuing.
(af)Any security over bank accounts will be subject to any security interests in favour of the account bank, which are created either by law or in the standard terms and conditions of the account bank. No grantor of security will be required to change its banking arrangements or standard terms and conditions in connection with the granting of bank account security, but will, in relation to accounts in Germany, the Netherlands and Belgium, be required to request the account bank to waive such liens pursuant to its general terms and conditions.
(ag)[Reserved].
(ah)If any bank account is required to be opened as a matter of local law in order to perfect any share security required to be granted in accordance with these Agreed Security Principles,
(i) such bank account shall not be required to be opened prior to the date falling 90 days after such share security is granted and (ii) the Holders authorise the Notes Collateral Agent
to enter into any documentation requested by the applicable account bank in connection with such security.
(ai)If required under applicable local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
9.Moveable Property
(aj)A Foreign Note Party shall grant security over its moveable property, subject to the general principles in these Agreed Security Principles.
(ak)No security over inventory needs to be granted by a Foreign Note Party if no security needs to be granted under the ABL Facility.
(al)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Note Documents, the Foreign Note Party providing the security is permitted to dispose of and use its moveable assets in accordance with the terms of the Indenture.
(am)If the granting of effective security over moveable assets gives rise to registration costs or similar taxes or costs, the secured amount under such security will be proportionate to the value of the underlying moveable asset (together with such buffer as may be reasonably agreed by the Notes Collateral Agent with the Company to reflect the fluctuating nature of the asset class), and ‘mandates’ to grant security will be granted where customary.
10.Insurance Policies
(an)Each Foreign Note Party shall grant security over its insurance policies, subject to the general principles in these Agreed Security Principles and other than insurance proceeds which (i) are payable to third parties, such as proceeds under life, health, group insurance or similar third parties liability insurance policies or (ii) benefit to employees and/or directors, if any.
(ao)No security will be granted over any insurance policy which does not allow security to be granted or which excludes the assignability of the insurance receivables, other than where such grant of security or such assignment is subject only to the consent of the relevant insurer. The provisions of this paragraph shall not operate to jeopardise any floating charge nor any assignment or other security interest over any and all damages, compensation, proceeds or other income attributable to such insurance policies which such Foreign Note Party may be entitled (or which such Foreign Note Party may be awarded or otherwise derive therefrom).
(ap)If required by local law to perfect the security or customary in the relevant jurisdiction, notice of the security will be served on the insurer within five Business Days (or less if required or customary under local law) of the security being granted and such Foreign Note Party shall use its commercially reasonable efforts to obtain a signed acknowledgement of that notice.
11.Intellectual property
(aq)A Foreign Note Party shall grant security over its intellectual property, subject to the general principles in these Agreed Security Principles.
(ar)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Note Documents, such Foreign Note Party shall be free to deal with, use, licence and otherwise commercialise those assets in the course of its business (including allowing its intellectual property to lapse if no longer material to its business) to the extent permitted under the Indenture.
(as)No security will be granted over intellectual property which cannot be secured under the terms of any relevant licensing agreement.
(at)If required under local law to create or perfect the relevant security, security over intellectual property shall be notarized and/or registered under the law of the jurisdiction of incorporation or formation of the applicable grantor, and no filings, registrations or other steps shall be required to be taken pursuant to the law of any other jurisdiction other than the United States or the United Kingdom, subject to the general principles set out in these Agreed Security Principles.
(au)Security over intellectual property rights will be taken on an “as is, where is” basis and such Foreign Note Party will not be required to procure any changes to, or corrections of filings on any registers (unless, subject to this Appendix, such changes to, or corrections of, filings are required to validly create such Security).
12.Receivables
(av)A Foreign Note Party shall grant security over its receivables, subject to the general principles in these Agreed Security Principles.
(aw)In respect of security over receivables (other than intra-group receivables), notice of the security shall be served on the relevant debtor (other than an intercompany debtor) immediately after an Event of Default, which is continuing. Notice of security over intercompany receivables shall be served on the relevant intercompany debtor within five
(5) Business Days of the creation of the security over such receivables.
(ax)Each Foreign Note Party will use commercially reasonable efforts to amend, after the Issue Date, the respective receivable invoices to mention the Notes Collateral Agent’s security interest in such receivables to the extent required under the laws of the local jurisdiction of the Foreign Note Party to perfect the security interest.
(ay)The Notes Collateral Agent will receive a floating charge with respect to receivables to the extent a floating charge can be created under local law.
(az)If required under local law, security over intercompany receivables will be registered and notified to the relevant intra-group debtor subject to the general principles set out in this Appendix.
(ba)If a Foreign Note Party grants security over its receivables, it shall be free to deal with, amend, waive or terminate those receivables in the course of its business and in accordance with the terms of the Indenture until the occurrence of an Applicable Event (other than any amendments or waivers that would materially adversely prejudice the rights of the Secured Parties).
(bb)No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract or if the terms of the relevant contract exclude the assignability of the trade receivables (unless such restrictions are set aside by overriding principles of applicable law). The provisions of this paragraph shall not operate to jeopardise any floating charge, any other security interest in respect of such receivables which is not restricted, any trust arrangement in respect of such receivables or any assignment or other security interest over any and all damages, compensation, proceeds, remuneration, profit, rent or other income attributable to such trade receivables which the Foreign Note Party may be entitled (or which such Foreign Note Party may be awarded or otherwise derive therefrom).
(bc)If required under local law security over trade receivables will be registered subject to the general principles set out in this Appendix.
(bd)Any list of receivables required to be delivered under any security document will not include details of the underlying contracts (but may include non-sensitive generic information to the extent that would allow for the creation of security) unless required under local law or required to enforce the security.
(a)With respect to a French Note Party, such French Note Party will grant security over its commercial receivables by way of assignment of any existing or future receivable (créance existante ou future) due or to be due by any existing or future debtor to such French Note Party, in each case as originated by such French Note Party, pursuant to articles L. 313-23 et seq. of the French Monetary and Financial Code (Code monétaire et financier).
13.Additional Principles
These Agreed Security Principles embody the recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or commercially reasonable guarantees and/or security from Foreign Note Parties in each jurisdiction in which it has been agreed that guarantees and security will be granted by those Foreign Note Parties. In particular:
(be)general legal and statutory limitations, regulatory restrictions (including foreign exchange controls), financial assistance, anti-trust and other competition authority restrictions, corporate object, corporate benefit, fraudulent preference, legal and equitable subordination, "transfer pricing", "thin capitalisation", "earnings stripping", "exchange control restrictions", "capital maintenance" rules and "liquidity impairment" rules, tax restrictions, retention of title claims, employee consultation or approval requirements and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited accordingly, provided that, to the extent requested by the Notes Collateral Agent or the Trustee before signing any applicable security or accession document, the relevant member of the group consisting of the Company and its Subsidiaries (the “Group”) shall use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bf)a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or registration) is the applicable time and cost (including adverse effects on taxes, interest deductibility, stamp duty, registration
taxes, notarial costs, guarantee fees payable to any person that is not a member of the Group and all applicable legal fees) which will not be disproportionate to the benefit accruing to the Holders of obtaining such guarantee or security, as determined by the Company and the Notes Collateral Agent);
(bg)unless otherwise required by the Indenture, members of the Group will not be required to give guarantees or enter into security documents if they are not directly or indirectly wholly owned by the Company or if it is not within the legal capacity of the relevant members of the Group or if it would conflict with the fiduciary or statutory duties of their directors or contravene any applicable legal, regulatory or contractual prohibition or restriction or have the potential to result in a material risk of personal or criminal liability for any director or officer of or for any member of the Group, provided that, to the extent requested by the Notes Collateral Agent or the Trustee before signing any applicable security document or accession document, the relevant member of the Group shall, in relation to a contractual prohibition or restriction only, use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bh)having regard to the principle in paragraph (b) above, the Company and the Notes Collateral Agent shall discuss in good faith (having regard to customary practice in applicable jurisdictions) with a view to determining whether certain security can be provided by the relevant Foreign Note Party granting a promise to pledge in favour of the Secured Parties coupled with an irrevocable power of attorney to the Notes Collateral Agent as opposed to a definitive legal mortgage or pledge over the relevant asset;
(bi)guarantees and security will be limited so that the aggregate of notarial costs and all registration and like taxes and duties relating to the provision of security will not exceed an amount to be agreed between the Company and the Notes Collateral Agent;
(bj)where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security to the Secured Parties, as determined by the Company and the Notes Collateral Agent, security will be granted over the material assets only;
(bk)it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets, as determined by the Company and the Notes Collateral Agent, in which event security will not be taken over such assets;
(bl)in each case to the extent the applicable restriction, condition or third party right did not arise in contemplation of the relevant guarantee or grant of security, any asset subject to a legal requirement, contract, lease, licence, instrument, regulatory constraint (including any agreement with any government or regulatory body) or other third party arrangement, which may prevent or condition the asset from being charged, secured or being subject to the applicable security document (including requiring a consent of any third party, supervisory board or works council (or equivalent)) and any asset which, if subject to the applicable security document, would give a third party the right to terminate or otherwise amend any rights, benefits and/or obligations with respect to any member of the Group in respect of the asset or require the relevant chargor to take any action materially adverse to the interests of the Group or any member thereof, in each case will be excluded from a guarantee or security document, provided that commercially reasonable efforts to obtain
consent to securing any asset (where otherwise prohibited) shall be used by the Group if the Notes Collateral Agent specifies prior to the date of the security or accession document that the asset is material and the Company is satisfied that such endeavors will not involve placing relationships with third parties in jeopardy;
(bm)the giving of a guarantee, the granting of security and the registration and/or the perfection of the security granted will not be required if it would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Note Documents (including dealing with the secured assets and all contractual counterparties or amending, waiving or terminating (or allowing to lapse) any rights, benefits or obligations, in each case prior to an Applicable Event which is continuing), and any requirement under these Agreed Security Principles to seek consent of any person or take or not take any other action shall be subject to this paragraph (i);
(bn)any security document will only be required to be notarised if required by law in order for the relevant security to become effective (including against third parties), enforceable or admissible in evidence (including without limitation evidence before third parties);
(bo)to the extent possible and unless required by applicable law in order for any assignee or transferee to benefit from the guarantees or security, there should be no action required to be taken in relation to the guarantees or security when any secured party assigns or transfers any of its participation to a new secured party (and, unless explicitly agreed to the contrary in the Note Documents, no Foreign Note Party shall bear or otherwise be liable for any taxes, any notarial, registration or perfection fees or any other costs, fees or expenses that result from any transfer by a Holder except if an Applicable Event has occurred and is continuing);
(bp)no title investigations or other diligence on assets will be required and no title insurance will be required;
(bq)security will not be required over any cash constituting regulatory capital or customer cash (and such assets or cash shall be excluded from any relevant security document);
(br)to the extent legally effective, all security will be given in favour of the Notes Collateral Agent and not the Secured Parties individually (with the Notes Collateral Agent to hold one set of security documents for all the Secured Parties unless otherwise required by local law); "parallel debt" provisions will be used where necessary and recognised; for the avoidance of doubt, in relation to accessory security under German law (akzessorische Sicherheiten), such security will be given in favour of the Notes Collateral Agent and the Secured Parties; it is acknowledged that certain security will be granted for those Secured Parties that satisfy any local law requirements necessary to benefit from such security;
(bs)each security document shall be deemed not to restrict or condition any transaction permitted under the Note Documents and the security granted under each security document entered into after the Issue Date shall be deemed to be subject to these Agreed Security Principles, before and after the execution of the relevant security document and creation of the relevant security;
(bt)each security document must be provided on terms which are not inconsistent with the turnover or sharing provisions in the Domestic Guarantee Agreement, the Foreign Guarantee Agreement and/or the Indenture;
(bu)no guarantee or security shall guarantee or secure any "Excluded Swap Obligations" defined in accordance with the LSTA Market Advisory Update dated February 15, 2013 entitled "Swap Regulations' Implications for Note Documentation", and any update thereto by the LSTA;
(bv)no translation of any document relating to any security or any asset subject to any security will be required to be prepared or provided to the Secured Parties, unless (i) any document which is to be signed by the Notes Collateral Agent or any notice to be delivered to the Notes Collateral Agent or (ii) required for such documents to become effective or admissible in evidence or (iii) an Applicable Event is continuing; and
(bw)local security documents may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and delivery of an executed counterpart to any security document by facsimile transmission or other electronic transmission (such as .pdf) shall be effective as delivery of a manually signed counterpart, in each case to the extent such execution is effective under local law.
14.Amendment
In any event of any material conflict or material inconsistency between any term of these Agreed Security Principles and any term of a Collateral Document or a guarantee, the Secured Parties authorize, instruct and direct the Notes Collateral Agent to, and the Notes Collateral Agent (or the Secured Parties, if required under the relevant jurisdiction) shall promptly (at the option and upon request of the Company prior to the occurrence of a Default which is continuing) (i) enter into (and notarise if required under the relevant jurisdiction) such amendments to such Collateral Document or guarantee or (ii) release and terminate such Collateral and enter into a replacement Collateral Document or guarantee on such amended terms, in each case as shall be necessary or desirable to cure such conflict or inconsistency, provided that (1) any such action (including any actions to be taken by the Holders) will be at the sole cost of the Company; (2) the relevant Note Party shall deliver all corporate authorities and legal opinions as may be required by the Notes Collateral Agent; and (3) no such action will be required to be taken in the event such amendment or replacement Collateral Document or guarantee would result in any hardening period or clawback period to be reset.
15.Execution of applicable Intercreditor Agreements
Any Foreign Note Party, existing on the Issue Date or hereinafter incorporated, shall sign or acknowledge, as applicable, any Intercreditor Agreement.
APPENDIX C
FOREIGN COLLATERAL DOCUMENTS
| | | | | |
| Jurisdiction | Security Documents |
Belgium | 1.A Belgian law governed Omnibus Pledge Agreement covering receivables, bank accounts and the business; and
2.Deposit account control agreement(s). |
France | 1.Master Daily Assignment Agreement (ABL);
2.First Ranking Bank Accounts Pledge Agreement (ABL);
3.Deposit account(s) control agreement(s) (ABL);
4.First Ranking Intragroup Receivables Pledge Agreement (ABL);
5.Fourth Ranking Pledge of Securities Account Agreement (ABL), together with the related statement of pledge;
6.First Ranking Pledge over future refunding receivables agreement (superpriority credit agreement);
7.Second Ranking Bank Accounts pledge agreement (superpriority credit agreement);
8.Second Ranking Intragroup Receivables Pledge Agreement (superpriority credit agreement);
9.First Ranking Pledge of securities account agreement (superpriority credit agreement), together with the related statement of pledge;
10.Second Ranking Pledge over future refunding receivables agreement (2025 U.S. notes);
11.Third Ranking Bank Accounts Pledge Agreement (2025 U.S. notes);
12.Third Ranking Intragroup Receivables Pledge Agreement (2025 U.S. notes);
13.Second Ranking Pledge of Securities Account Agreement (2025 U.S. notes), together with the related statement of pledge;
14.Second Ranking Pledge over future refunding receivables agreement (2025 E.U. notes);
15.Third Ranking Bank Accounts Pledge Agreement (2025 E.U. notes); |
| | | | | |
| Jurisdiction | Security Documents |
| 16.Third Ranking Intragroup Receivables Pledge Agreement (2025 E.U. notes);
17.Second Ranking Pledge of Securities Account Agreement (2025 E.U. notes), together with the related statement of pledge;
18.Second Ranking Pledge over future refunding receivables agreement (2025 credit agreement);
19.Third Ranking Bank Accounts Pledge Agreement (2025 credit agreement);
20.Third Ranking Intragroup Receivables Pledge Agreement (2025 credit agreement);
21.Second Ranking Pledge of Securities Account Agreement (2025 credit agreement), together with the related statement of pledge;
22.Third Ranking Pledge over future refunding receivables agreement (2026 notes);
23.Fourth Ranking Bank Accounts Pledge Agreement (2026 notes);
24.Fourth Ranking Intragroup Receivables Pledge Agreement (2026 notes); and
25.Third Ranking Pledge of Securities Account Agreement (2026 notes), together with the related statement of pledge. |
Germany | 1.German Receivables Assignment Agreement;
2.German Bank Account Pledge Agreement;
3.Transfer Agreement over Inventory;
4.GmbH Share Pledge Agreement;
5.KG Interest Pledge Agreement; and
6.IP Assignment Agreement. |
Italy | 1.Italian Bank Account Pledge Agreement;
2.Italian Agreement for the Assignment by way of Security of Receivables; and
3.Notarial quota pledge over the Italian company. |
| | | | | |
| Jurisdiction | Security Documents |
Netherlands | 1.A Dutch law governed security agreement purporting to create security over all Dutch assets, i.e. omnibus security (including A/R, inventory, bank accounts, IP, etc.);
2.Dutch notarial deed of pledge of shares – Diebold Nixdorf Dutch Holding B.V.;
3.Dutch notarial deed of pledge of shares – Diebold Nixdorf Global Holding B.V.;
4.Dutch notarial deed of pledge of shares – Diebold Nixdorf B.V.;
5.Dutch notarial deed of pledge of shares – Diebold Nixdorf Global Solutions B.V.;
6.Dutch notarial deed of pledge of shares – Diebold Nixdorf Software Partner B.V.;
7.Dutch partnership interest security agreement – Diebold Nixdorf Software Partner C.V.; and
8.Dutch IP security agreement – WINCOR NIXDORF International GmbH, Diebold Nixdorf, Incorporated and Diebold Nixdorf Systems GmbH. |
| | | | | |
Poland | 1.Assignment of rights under commercial contracts and insurance agreements - Diebold Nixdorf sp. z o.o.;
2.Assignment of rights under commercial contracts and insurance agreements - Diebold Nixdorf BPO sp. z o.o.;
3.Agreement for civil and registered pledges over bank accounts - Diebold Nixdorf sp. z o.o.;
4.Agreement for civil and registered pledges over bank accounts - Diebold Nixdorf BPO sp. z o.o.;
5.Power of attorney to the bank accounts - Diebold Nixdorf sp. z o.o.;
6.Power of attorney to the bank accounts - Diebold Nixdorf BPO sp. z o.o.; 7.Agreement for registered pledge over movable property and rights - Diebold Nixdorf sp. z o.o.;
8.Agreement for registered pledge over movable property and rights - Diebold Nixdorf BPO sp. z o.o.;
9.Agreement on the ordinary and registered pledges over shares in Diebold Nixdorf sp. z o.o.; |
| | | | | |
| Jurisdiction | Security Documents |
|
10.Agreement on the ordinary and registered pledges over shares in Diebold Nixdorf BPO sp. z o.o.;
11.Submission to enforcement - Diebold Nixdorf sp. z o.o.; and
12.Submission to enforcement - Diebold Nixdorf BPO sp. z o.o. |
Spain | 1.Spanish pledge over quota shares in Diebold Nixdorf, S.L.
2.Spanish law amendment, extension and ratification of the Spanish pledge over credit rights, bank account pledge, inventory pledge and ancillary irrevocable power of attorney granted by the Spanish Loan Parties
3.Deposit Account Control Agreement; and
4.Deed of irrevocable power of attorney to be granted in favor of the collateral agent related to the pledge over quota shares |
Sweden | 1.Receivables pledge/assignment agreement;
2.Bank account pledge agreement;
3.Share pledge agreement over the shares in the Swedish company;
4.Business mortgage pledge agreement; and
5.Insurance pledge agreement. |
UK | 1.English law security agreement (i.e. the English law debenture);
2.English law share charge;
3.English law floating charge;
4.Deposit account control agreement(s);
5.a charge over UK IP held by non-UK Loan Parties; and
6.a charge over UK bank accounts held by US and Canadian Loan Parties. |
APPENDIX D
POST-CLOSING MATTERS
Section 1. Less than 30 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
1. | UK | Diebold Nixdorf (UK) Limited to deliver notices to its UK account banks in the agreed form as between UK counsel | On the Issue Date |
2. | Belgium | Diebold Nixdorf BV (Belgium) will deliver to the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) the certificate of receivables pledge, duly printed on its letterhead and executed by an authorised representative | On the Issue Date |
3. | Belgium | Diebold Nixdorf BV (Belgium) will register the omnibus pledge agreement with the National Pledge Register | On the Issue Date |
4. | Netherlands | Registration of the Dutch law governed security agreement dated on Issue Date and made among the Dutch Guarantors as pledgors and the Notes Collateral Agent as pledgee (the "Dutch Security Agreement") | 2 Business Days from the Issue Date |
5. | Netherlands | Delivery of the notices required to be sent to Group Companies and/or Insurance Companies (as defined therein) pursuant to the Dutch Security Agreement | As provided for the Dutch Security Agreement |
6. | Poland | Delivery of notices to the Insurance Companies (if any) of the assignment in accordance with the paragraph 2.7 a) of the Polish Assignment of Rights agreement | 5 Business Days from the Issue Date |
7. | Sweden | Delivery of a duly executed application form in regards to the Swedish corporate mortgage | 5 Business Days from Issue Date |
8. | Belgium | Diebold Nixdorf BV (Belgium) is to deliver notices to its account banks in the agreed form as between Belgian counsel. | Within 5 Business Days from the Issue Date |
9. | Belgium | Diebold Nixdorf BV (Belgium) is to deliver notices in relation to disclosed receivables to the relevant debtors in the agreed form as between Belgian counsel. | Within 5 Business Days from the Issue Date |
| 10 | Germany | Notice to the accounts banks of the pledge over the existing deposit accounts under the German law account pledge agreement (initial notice) | Within 5 Business Days from the Issue Date |
| 11 | Germany | The German Guarantors shall deliver notice to the relevant Debtors of the assignment of the Intra-Group Receivables under the German law security assignment agreement | Within 5 Business Days from the Issue Date |
| 12 | Germany | The German Guarantors shall deliver to the relevant Debtors (insurance company) of the assignment of the Insurance Claims under the German law security assignment agreement | Within 5 Business Days from the Issue Date |
| 13 | Poland | Execution of Polish submission to enforcement by Polish Guarantors before notary in Poland | 7 Business Days from the Issue Date |
| 14 | Poland | Filing with a relevant registration court the applications for registration of the registered pledges in accordance with each (i) Polish agreement for registered pledge over enterprise; | 7 Business Days from the Issue Date |
| | | | | | | | | | | |
| | and (ii) Polish agreement for civil and registered pledges over bank accounts. | |
| 15 | Poland | Filing with each account bank the notice on the creation of each civil pledge established in accordance with each Polish agreement for civil and registered pledges over bank accounts | 7 Business Days from the Issue Date |
| 16 | UK | Registration by Ashurst LLP of the English debenture executed at Closing | 21 days from the Issue Date |
| 17 | UK | Wincor Nixdorf International GmbH to deliver original share certificates and stock transfer forms executed in blank in relation to its shares in Diebold Nixdorf (UK) Limited to the Superpriority Credit Facility Collateral Agent | 21 days from the Issue Date |
| 18 | US | A New York Law intellectual property Security Agreement in respect of US-registered intellectual property owned by Foreign Loan Parties. | 21 days from the Issue Date |
| 19 | US | Joinders to the Intercompany Subordination Agreement | 21 days from the Issue Date |
| 20 | US | Deliver to the Superpriority Credit Facility Collateral Agent original share certificates and related stock transfer forms executed in blank and promissory notes and related allonges, in each case, constituting Collateral | 21 days from the Issue Date |
Section 2. 30 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
Security Documents |
| 1. | Sweden | A Swedish law governed insurance pledge agreement between each Swedish Guarantor as pledgor and the Notes Collateral Agent as pledgee | 30 days from the Issue Date |
| 2. | Sweden | Notice under Swedish Account pledge to applicable Required Accounts depository banks (although email notice to be sent on Issue Date) | 30 Business Days from the Issue Date |
| 3. | UK | An English law governed bank account charge between Diebold Nixdorf, Incorporated as chargor and the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) | 30 days from the Issue Date |
| 4. | UK | An English law governed bank account charge between Diebold Nixdorf Canada Limited as chargor and the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) | 30 days from the Issue Date |
| 5. | Spain | Notarisation of a Spanish law pledge over credit rights between the Spanish Loan Parties as pledgor, the lenders under the ABL Facility and the Notes Collateral Agent as pledgees and the extension and ratification of the ancillary irrevocable power of attorney. | 30 days from the Issue Date |
| Other |
| 6. | Sweden | Notice in relation to the Swedish insurance pledge to be delivered by the Swedish Guarantors | 5 Business Days from entering into the Swedish Insurance Pledge |
Section 3. 90 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
Security Documents |
1. | German | A German law share pledge agreement in respect of the shares of Diebold Nixdorf Holding Germany GmbH, WINCOR NIXDORF International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, WINCOR NIXDORF Facility GmbH, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Nixdorf Finance Germany GmbH and Diebold Nixdorf Global Logistics GmbH between Diebold Nixdorf, Incorporated, Diebold Nixdorf Holding Germany, WINCOR NIXDORF International GmbH and Diebold Nixdorf Logistics GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
2. | German | A German law interest pledge over the general partner's interest held by Diebold Nixdorf Security GmbH and the limited partner's interest held by WINCOR NIXDORF Facility GmbH in Diebold Nixdorf Real Estate GmbH & Co. KG | 90 days from the Issue Date |
3. | German | A German law assignment agreement relating to intellectual property between Diebold Nixdorf Holding Germany GmbH, WINCOR NIXDORF International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, WINCOR NIXDORF Facility GmbH, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Nixdorf Finance Germany GmbH and Diebold Nixdorf Global Logistics GmbH as assignors and the Notes Collateral Agent as assignee | 90 days from the Issue Date |
4. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf B.V between WINCOR NIXDORF International GmbH, as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf B.V. as company | 90 days from the Issue Date |
5. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Software Partner B.V. between Diebold WINCOR NIXDORF International GmbH as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Software Partner B.V. as company | 90 days from the Issue Date |
| | | | | | | | | | | |
6. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Dutch Holdings B.V. between Diebold Nixdorf, Incorporated as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Dutch Holdings B.V. as company | 90 days from the Issue Date |
7. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Global Holdings B.V. between Diebold Nixdorf, Incorporated as pledgor, the | 90 days from the Issue Date |
| | | | | | | | | | | |
| | Notes Collateral Agent as pledgee and Diebold Nixdorf Global Holdings B.V. as company | |
8. | Netherlands | A Dutch law governed share pledge in respect of the shares in Diebold Nixdorf Global Solutions B.V. between Diebold Nixdorf Software C.V. as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Global Solutions B.V. as company | 90 days from the Issue Date |
9. | Netherlands | A Dutch law governed partnership interest security agreement in respect of the partnership interest in Diebold Nixdorf Software C.V. between Diebold Nixdorf Global Holdings, B.V. and IP Management GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
10 | Netherlands | A Dutch law governed notarial deed of change of priority in relation to the existing Dutch notes security between U.S. Bank Trustees Limited, U.S. Bank National Association and the Notes Collateral Agent | 90 days from the Issue Date |
11 | Netherlands | A Dutch law governed IP security agreement between WINCOR NIXDORF International GmbH, Diebold Nixdorf, Incorporated and Diebold Nixdorf Systems GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
12 | Netherlands | Registration of the Dutch notarial deeds of pledge in the original shareholders register of each Dutch company (done by Stibbe notary) | 90 days from the Issue Date |
13 | Italy | A notarial quota pledge over the Italian Guarantors between WINCOR NIXDORF International GmbH, as pledgor and the Notes Collateral Agent as pledgee - to be executed before Saville in London by Saville's clerks on behalf of the Notes Collateral Agent (acting on behalf of all the secured parties) on the basis of a PoA already executed and issued by the Notes Collateral Agent | 90 days from the Issue Date |
14 | Spain | Notarisation of a Spanish law governed quota share pledge in respect of the quota shares in the Spanish Guarantors between WINCOR NIXDORF International GmbH, as pledgor, lenders under the ABL Facility and the Notes Collateral Agent as pledgees and the extension and ratification of the ancillary irrevocable power of attorney. | 90 days from the Issue Date |
15 | Spain | Deed of irrevocable power of attorney to be granted in favor of the Notes Collateral Agent related to the pledge over quota shares | 90 days from the Issue Date |
16 | Spain | Notarisation of the Spanish law amendment, extension and ratification of the Spanish pledge over bank account pledge, inventory pledge and ancillary irrevocable powers of attorney granted by the Spanish Guarantors | 90 days from the Issue Date |
17 | Spain | Spanish public deed raising to the status of Spanish public document a pdf executed copy of the Indenture | 90 days from the Issue Date |
| | | | | | | | | | | |
18 | Spain | Spanish public deed raising to the status of Spanish public document a pdf executed copy of the Multi Lender ICA and the Junior Lien ICA | 90 days from the Issue Date |
19 | France | Pursuant to the French Pledge of Securities Account Agreements, the French Guarantors shall procure that the Special Account Provider shall (1) open the Special Account and provide forthwith the banking details to the Notes | 90 days from the Issue Date |
| | | | | | | | | | | |
| | Collateral Agent and (2) procure that a signed Special Account Confirmation of Pledge ("attestation de constitution de nantissement de compte fruits et produits") is delivered to the Notes Collateral Agent with respect to the Special Account. | |
20 | Sweden | A Swedish law governed share pledge in respect of the shares in the Swedish Guarantors between WINCOR NIXDORF International GmbH, as pledgor and the Notes Collateral Agent as pledgee. For the perfection of the Swedish share pledge, WINCOR NIXDORF International GmbH shall on the day of entering into the share pledge (i) deliver to the Superpriority Credit Facility Collateral Agent original share certificate(s) evidencing the shares pledged, duly endorsed in blank, (ii) send a notice of the pledge to the Swedish company and (iii) procure that the pledge is duly registered in the Swedish company's share register. | 90 days from the Issue Date |
21 | Poland | Polish law agreement on the ordinary and registered pledges over shares in Diebold Nixdorf sp. z o.o. | 90 days from the Issue Date |
22 | Poland | Polish law agreement on the ordinary and registered pledges over shares in Diebold Nixdorf BPO sp. z o.o. | 90 days from the Issue Date |
23 | UK | English law charge over UK IP held by non-UK Guarantors | 90 days from the Issue Date |
24 | US | New York law pledge agreement by Diebold Nixdorf Global Holding B.V. in respect of (a) the membership interests of Diebold Mexico Holding Company, LLC and (b) the securities of Diebold Nixdorf Canada Limited | 90 days from the Issue Date |
25 | US | The Company and the Domestic Guarantors shall cause (i) each liability policy of insurance (other than directors' and officers' policies and workers' compensation policies) to name the Notes Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its interests may appear and (ii) each property insurance policy to contain a loss payable clause and endorsement that names the Notes Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder | 90 days from the Issue Date |
| Other |
26 | Spain | A notarised and apostilled power of attorney to be granted by each pledgee under the Spanish inventory pledge, appointing their counsel to execute the amendments to the Spanish inventory pledge, bank account pledge and the inventory pledge and ratification of ancillary irrevocable power of attorney before notary. | On or prior to the date of execution of the amendments to the Spanish security documents |
27 | Spain | Spanish public documents need to be executed before the Spanish notary. | On or prior to the date of execution of the amendments to the Spanish security documents |
| | | | | | | | | | | |
28 | Spain | Pledge over quota shares: notarisation of the deed of pledge as Spanish Public Document and registration of the pledge in the registry book of shareholders. | On or prior to the date of execution of the amendments to the Spanish security documents |
29 | Italy | (i)Delivery of the original deed to an Italian notary appointed by the company for its deposit in the competent register; and (ii)issuance of the Italian validity legal opinion on the security document from Ashurst Milano. | 90 days from the Issue Date |
30 | Netherlands | A notarised and apostilled power of attorney to be granted by the Notes Collateral Agent in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
31 | Netherlands | A notarised and apostilled power of attorney to be granted by WINCOR NIXDORF International GmbH in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
32 | Netherlands | A notarised and apostilled power of attorney to be granted by Diebold Nixdorf, Incorporated in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
33 | Netherlands | Notarised powers of attorney to be granted by each of the Dutch entities in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
34 | German | A power of attorney to be granted by the Notes Collateral Agent as pledgee under the German law share pledge agreements, appointing its counsel to execute the German law share pledge agreements before notary | On or prior to the date the German law share pledge agreements are executed |
| | | | | | | | | | | |
35 | Poland | Evidence of filing duly completed applications with respect to registered Polish law pledges over shares, together with evidence of payment of all relevant court fees and/or stamp duties; | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
36 | Poland | List of shareholders evidencing the establishment of Polish law ordinary and registered pledge over shares | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
| | | | | | | | | | | |
37 | Poland | Poland: share register evidencing the establishment of ordinary and registered pledge over shares | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
38 | Sweden | Delivery of original share certificate, endorsed in blank, of Swedish Guarantors to the security agent | On the day of entering into of the security agreement |
39 | Poland | Evidence of filing or of dispatch of duly completed notices and confirmations (in the form set out in the security assignment agreement) for any assigned rights under the security assignment agreement | 90 days from the Issue Date |
40 | Poland | Evidence of filing duly completed applications, notices to account banks and acknowledgements in relation to pledges over enterprise and over the bank accounts and shares (as applicable), together with evidence of payment of all relevant court fees and/or stamp duties | 90 days from the Issue Date |
41 | Poland | Registration of registered pledges over enterprise, bank accounts and shares | 90 days from the Issue Date |
42 | Poland | Subject to provisions of the ABL Credit Agreement, Diebold Nixdorf BV shall procure to obtain the fully executed deposit account control agreement by each of the account banks in respect of each collection account. Diebold Nixdorf BV shall deliver to the pledgee and the notes representative a copy of the acknowledgment, duly executed by each account bank, in the timeframe specified in the ABL Credit Agreement. | 90 days from the Issue Date |
EXHIBIT A
[FORM OF FACE OF NOTE]
[Insert the Restricted Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Global Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Definitive Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the ERISA Legend, if applicable, pursuant to the provisions of the Indenture.]
[CUSIP [ ]
[RULE 144A][REGULATION S][IAI][GLOBAL] [ATTACHED] NOTE
8.50%/12.50% Senior Secured PIK Toggle Notes due 2026
No. [RA- ] [RS- ] [RIAI- ] [U- ] [Up to]3 [$ ]
DIEBOLD NIXDORF, INCORPORATED
promises to pay to [Units Trustee]4[CEDE & CO.]5 [ ] or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests and Transfers of Principal in the Global Note attached hereto]6 [set forth on Schedule of Decreases of Principal in the Attached Note attached hereto]7 [of $ ( Dollars)]8 on October 15, 2026.
Interest Payment Dates: January 15 and July 15 Record Dates: January 1 and July 1
1 Rule 144A Note CUSIP: 253651AF0 Rule 144A Note ISIN: US253651AF00
Regulation S Note CUSIP: U25317AC9 Regulation S Note ISIN: USU25317AC95 IAI Note CUSIP: 253651AG8
IAI Note ISIN: US253651AG82
2 Include in Global Notes
3 Include in Global Notes.
4 Include in Attached Notes
5 Include in Global Notes
6 Include in Global Notes
7 Include in Attached Notes
8 Include in Definitive Notes
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
By: |
Authorized Signatory |
Dated:
[Reverse Side of Note]
8.50%/12.50% Senior Secured PIK Toggle Notes due 2026
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1.INTEREST. Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), promises to pay interest (subject to paragraph 2 of this Section 1) on the principal amount of this Note at 8.50% per annum through July 15, 2025, after which interest shall accrue at the rate of 8.50% or 12.50% (if in the form of PIK Interest) until but excluding maturity. The Company shall pay interest semi-annually in arrears on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day, beginning on July 15, 2023 (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including [December [ ], 2022] [ , 20[ ]]; provided that the first Interest Payment Date shall be [July 15, 2023] [ , 20[ ]]. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
Upon the occurrence of a Board Candidate Failure Event, the rate of interest shall be increased by an additional fixed rate of 2.50% (with such increase being solely in the form of PIK Interest) with respect to all remaining days in the Interest Period during which such Board Candidate Failure Event occurred and for all following Interest Periods.
2.METHOD OF PAYMENT. The Company shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of business on January 1 or July 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, even if such Notes are canceled after such Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Principal, premium, if any, and cash interest (in accordance with the terms hereof) on the Notes shall be payable at the office or agency of the Company maintained for such purpose or, at the option of the Company, payment of cash interest and premium, if any, may be made by check mailed to the Holders at their respective addresses set forth in the Note Register; provided that, in the case of all cash payments, payment by wire transfer of immediately available funds shall be required with respect to principal, premium, if any, and cash interest on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent at least five Business Days prior to the applicable payment date. Such cash payments shall be in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts. In the event the Company is required (or has properly elected) to pay PIK Interest for any applicable Interest Period in accordance with the terms of the Indenture, the Company will pay interest due for such Interest Period for all outstanding Notes by increasing the outstanding aggregate principal amount of the Notes or issuing additional notes (the “PIK Notes”) under the Indenture having the same terms as the Notes (each, a “PIK Payment”). Any increase to the outstanding aggregate principal amount of the Notes will be recorded on each Note by the Registrar on the applicable Interest Payment Date. Unless the context requires otherwise, references to “Notes” herein includes any PIK Notes that are actually issued and references to “principal amount” or “aggregate principal amount” of the Notes include any increase in the principal amount or aggregate principal amount of the Notes as a result of a PIK Payment. For the avoidance of doubt, any PIK Notes will be part
of the same issues as the Notes, including for purposes of determining whether the required percentage of Holders have given approval or consent to an amendment, supplement or waiver or joined in directing the Trustee or the Notes Collateral Agent. On any Interest Payment Date on which the Company pays PIK Interest with respect to a Definitive Note or otherwise issues definitive PIK Notes, the principal amount of any definitive PIK Notes issued to any Holder, for the relevant Interest Period on the principal amount of such Note as of the relevant Record Date for such Interest Payment Date, shall be rounded up to the nearest whole dollar.
3.PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.
4.INDENTURE. The Company issued the Notes under an Indenture, dated as of December 29, 2022 (as amended or supplemented from time to time, the “Indenture”), among Diebold Nixdorf, Incorporated, the Guarantors named therein, the Trustee and the Notes Collateral Agent. This Note is one of a duly authorized issue of notes of the Company designated as its 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026. The Company shall be entitled to issue Additional Notes pursuant to Section 2.01 and 4.09 of the Indenture. The Notes and any Additional Notes issued under the Indenture shall be treated as a single class of securities under the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5.REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
6.DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1.00 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and Holders shall be required to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered for repurchase in connection with a Change of Control Offer or Asset Disposition Offer, except for the unredeemed portion of any Note being redeemed or repurchased in part.
7.PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
8.AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Note Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
9.DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company, the Guarantors, the Trustee, the Notes Collateral Agent and the Holders shall be as set forth in the applicable provisions of the Indenture.
10.AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual, electronic or facsimile signature of the Trustee.
11.GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE NON- EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13.CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
14.SECURITY. The Notes and the Note Guarantees will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the Trustee and the Holders, in each case pursuant to the Collateral Documents and the Intercreditor Agreements. Each Holder, by accepting this Note, consents and agrees to the terms of the Collateral Documents and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements, and to perform its obligations thereunder in accordance therewith.
15.INTERCREDITOR AGREEMENTS. Anything herein to the contrary notwithstanding, the liens and security interests securing the Obligations evidenced by this Note, the exercise of any right or remedy with respect thereto, and certain of the rights of the Holder hereof are subject to the provisions of the Intercreditor Agreements. In the event of any conflict between the terms of any Intercreditor Agreement and this Note, the terms of the applicable Intercreditor Agreement shall govern and control.
16.STAPLED WARRANTS. The Notes will trade together with the Warrants as a “unit security” (the “Units”) on the terms provided in the Unit Agreement until separated on or prior to April 1, 2024 on the terms set forth in the Unit Agreement. As such, the Notes and the Warrants will not be separately transferable until such date of separation. Any Permitted Equity Issuance Prepayment of the Notes (including any and all accrued PIK Interest on such Notes) prior to April 1, 2024 shall result in the
immediate cancellation of the Warrants attached thereto, and any refinancing of the Notes (including any and all accrued PIK Interest thereon) in connection with a Change of Control prior to April 1, 2024 shall result in the immediate cancellation of the Warrants attached thereto. In the event of any other repayment, repurchase, redemption, or other retirement of the Notes, the Warrants shall not be cancelled and shall immediately detach and be freely transferable (subject to applicable securities laws) as provided in the Unit Agreement. On April 1, 2024, the Warrants shall detach automatically, without any action by the holders thereof, from the Notes and shall be separately transferable as of April 1, 2024 (subject to applicable securities laws) as provided in the Unit Agreement.
The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Company at the following address:
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned (check one box below):
has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)to the Company or subsidiary thereof; or
(2)to the Registrar for registration in the name of the Holder, without transfer; or
(3)pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or
(4)to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
(5)pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter through Euroclear or Clearstream); or
(6)to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7)under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements; or
(7)pursuant to Rule 144 under the Securities Act; or
(8)pursuant to another available exemption from registration under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6), (7) or (8) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
| | |
Your Signature |
Date: |
Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
NOTICE: To be executed by
an executive officer
Name: Title:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE9
The undersigned represents and warrants that either:
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
Dated:
Your Signature
9 Include only for Regulation S Global Notes.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the amount you elect to have purchased:
$ (integral multiples of $1.00,
provided that the unpurchased portion must be in a minimum principal amount of $2,000)
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS AND TRANSFERS OF PRINCIPAL IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, or increase in outstanding principal amount of this Global Note upon a corresponding decrease in outstanding principal amount of an Attached Note, have been made:
| | | | | | | | | | | | | | |
Date of Exchange or Increase |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Trustee, Depositary or Custodian |
*This schedule should be included only if the Note is issued in global form.
SCHEDULE OF DECREASES OF PRINCIPAL IN THE ATTACHED NOTE*
The initial outstanding principal amount of this Attached Note is $ . The following decreases in principal amount of this Attached Note upon a corresponding increase in principal amount of an applicable Global Note have been made:
| | | | | | | | | | | |
Date of Decreases |
Amount of decrease in Principal Amount of this Attached Note | Principal Amount of this Attached Note following such decrease |
Signature of authorized signatory of Trustee, Depositary or Custodian |
*This schedule should be included only if the Note is issued as an Attached Note.
EXHIBIT B
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal amount of the 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (the “Notes”) of Diebold Nixdorf, Incorporated (the “Company”).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows: Name:
Address: Taxpayer ID Number:
The undersigned represents and warrants to you that:
1.We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor”, and we are acquiring the Notes, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2.We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes only in accordance with the Restricted Notes Legend (as such term is defined in the indenture under which the Notes were issued) on the Notes and any applicable securities laws of any state of the United States. If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) of the Restricted Notes Legend, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and
the Trustee reserve the right prior to the offer, sale or other transfer of the Notes with respect to applicable transfers described in the Restricted Notes Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company and the Trustee.
TRANSFEREE: ,
by:
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this “Supplemental Indenture”), dated as of [ ] [ ], 20[ ], among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”),
[ ] (the “Guaranteeing Subsidiary”), a subsidiary of the Company, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and GLAS Americas LLC as notes collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Company and the Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee and the Notes Collateral Agent an indenture dated as of December 29, 2022 (as may be further amended from time to time, the “Indenture”), providing for the issuance of 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Notes Collateral Agent are authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1.Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.Guarantor. The Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 12 thereof.
3.Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
5.Headings. The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
6.Guarantee Limitations Language. [To be inserted if applicable based on
jurisdiction].
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
| | |
[NAME OF GUARANTEEING SUBSIDIARY] |
By: |
| Name: |
| Title: |
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
By: |
| Name: |
| Title: |
| | |
GLAS AMERICAS LLC, as Notes Collateral Agent |
By: |
| Name: |
| Title: |
Execution Version
Diebold Nixdorf, Incorporated AND
U.S. Bank Trust Company, National Association, as Units Trustee, as Trustee and Paying Agent under the Indenture referred to herein, and as Warrant Agent under the Warrant Agreement referred to herein
UNIT AGREEMENT
Dated as of December 29, 2022
Error! Unknown document property name.
TABLE OF CONTENTS
Page
Section 2.07. Temporary Unit Certificates Error! Bookmark not defined.
Section 2.10. Persons Deemed Owners Error! Bookmark not defined.
Section 2.12. Exchange of Global Units and Definitive UnitsError! Bookmark not defined.
Exhibit A Form of Unit
Exhibit B Termination Event Notice
Exhibit C-1 Prohibited Event Unit Split Date Notice Exhibit C-2 Indenture Default Notice
ii
UNIT AGREEMENT, dated as of December 29, 2022, by and between Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), and U.S. Bank Trust Company, National Association, acting solely as Units Trustee under this Agreement (in its capacity as Units Trustee, the “Units Trustee,” except to the extent that this Agreement specifically states that the Units Trustee is acting in another capacity), as trustee under the Indenture described below (in its capacity as trustee under the Indenture, the “Trustee”), and as warrant agent under the Warrant Agreement described below (in its capacity as warrant agent under the Warrant Agreement, the “Warrant Agent”).
WHEREAS, the Company has entered into a senior secured indenture dated as of December 29, 2022 among the Company, the guarantors party thereto, the Trustee and GLAS Americas LLC, as collateral agent (as amended or supplemented, the “Indenture”);
WHEREAS, the Company has duly authorized the issuance, from time to time, pursuant to the Indenture, of senior secured notes (the “Notes”);
WHEREAS, the Company has entered into a warrant agreement, dated as of December 29, 2022, between the Company and the Warrant Agent (the “Warrant Agreement”);
WHEREAS, the Company has duly authorized the issuance, from time to time, pursuant to the Warrant Agreement, of warrants (the “Warrants”) to purchase common shares, par value $1.25 per share, of the Company (“Common Shares”);
WHEREAS, the Company desires to provide for the issuance, pursuant to this Agreement, of units (the “Units”) consisting of Outstanding Notes and Outstanding Warrants;
NOW, THEREFORE, in consideration of the promises and the receipt of the Units by the holders thereof in exchange for such holders’ existing 8.50% Senior Notes due 2024 (the “Existing Notes”) pursuant to an unregistered exchange offer closing on or about the date hereof (the “Initial Exchange Offer”), the Company, the Units Trustee, the Warrant Agent and the Trustee mutually covenant and agree as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (ii) all accounting terms not
otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles in the United States in effect at the time of any computation; and (iii) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent Member” has the meaning stated in Section 2.01(d)(ii) of this Agreement.
“Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.
“Attached Notes” has the meaning set forth in the Indenture. “Attached Warrants” has the meaning set forth in the Warrant
Agreement.
“Board of Directors” means the board of directors of the Company or any other committee duly authorized to act on its behalf with respect to this Agreement.
“Board Resolution” means one or more resolutions, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted or consented to by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Units Trustee.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or North Canton, Ohio are authorized or required by law to close.
“Common Shares” has the meaning stated in the recitals. “Company” means the Person named as the “Company” in the first
paragraph of this Agreement.
“Corporate Trust Office” means the office of the Units Trustee at which at any particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 1350 Euclid Avenue, Suite 1100, Cleveland, Ohio 44115.
“Debt Security Register” with respect to any Notes constituting a part of the Units means the Note Register (as such term is defined in the Indenture) maintained by the Registrar (as such term is defined in the Indenture) pursuant to the Indenture.
“Definitive Securities” means any Security in definitive form. “Definitive Unit” means any Unit in definitive form to the extent
permitted by Sections 2.11 or 2.12.
“Definitive Units Legend” has the meaning stated in Section 2.08(e) of this Agreement.
“Depositary” means DTC, or any successor, as the Holder of any Global
Units.
“Distribution Compliance Period” means, with respect to any Unit, the
period of six months beginning on and including the later of (a) the day on which such Unit is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (b) the date of issuance with respect to such Unit or any predecessor of such Unit.
“DTC” means The Depository Trust Company or its nominee.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Existing Notes” has the meaning stated in the recitals. “Global Note” means a global Note in registered form.
“Global Unit” means any Unit that comprises one or more Initial Warrant Certificates and/or Attached Notes and is represented by a Global Unit Certificate. The Rule 144A Global Unit, the IAI Global Unit, the Regulation S Global Unit and any Unrestricted Global Unit are each referred to herein as a “Global Unit” and are collectively referred to herein as “Global Units.”
“Global Unit Certificate” means a global Unit Certificate in registered
form.
“Global Warrant” means a global Warrant in registered form.
“Holder” means the Person in whose name a Registered Security or the Registered Securities constituting a part of a Registered Unit are registered on the relevant Security Register or Unit Register, as applicable.
“IAI” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.
“IAI Global Unit” has the meaning stated in Section 2.01(c) of this Agreement.
“Indenture” has the meaning specified in the recitals.
“Initial Exchange Offer” has the meaning stated in the recitals.
“Initial Warrant Certificates” has the meaning set forth in the Warrant Agreement.
“Issuer Order” means a written order signed in the name of the Company by an Officer and delivered to the Units Trustee, Trustee or Warrant Agent, as applicable. For the avoidance of doubt, an Authentication Order issued under the Indenture or a written order issued under the Warrant Agreement is considered an Issuer Order.
“Key Definitions” has the meaning stated in Section 6.01(b) in this Agreement.
“Key Provisions” has the meaning stated in Section 6.01(b) in this Agreement.
“Maximum Number of Warrant Shares” means, initially, 15,813,847 Common Shares; provided that the Maximum Number of Warrant Shares shall be subject to adjustment as follows: (i) if a Termination Event with respect to any portion of the principal amount of any Units occurs prior to April 1, 2024, the Maximum Number of Warrant Shares will be reduced proportionately to reflect the cancellation of the Warrants attached to such aggregate principal amount of Units; (ii) if a Unit Split Date occurs with respect to a portion but not all of the aggregate principal amount of Units, the Maximum Number of Warrant Shares will be proportionately reduced by a number equal to the product of (x) the sum of (A) the number of Warrants separated as a result of the applicable Unit Split Date and (B) the number of Warrants cancelled on account of any cash paid in lieu of delivery of any fractional Warrants as provided in Section 3.08(b) of the Warrant Agreement, and (y) the then applicable Warrant Share Number (as defined in the Warrant Agreement); and (iii) the Maximum Number of Warrant Shares shall also be adjusted at the same time, and in the same manner, as the Warrant Share Number (as defined in the Warrant Agreement) is adjusted in
respect of certain anti-dilution adjustments, dividends and other corporate events pursuant to Article IV of the Warrant Agreement.
“Notes” has the meaning stated in the recitals and shall refer to (i) any Notes issued under the Indenture on the date hereof as part of Units issued under this Agreement on the date hereof in connection with the Initial Exchange Offer,
(ii) any Notes issued under the Indenture after the date of this Agreement as part of Units issued under this Agreement in connection with the SEC Registered Exchange Offer, (iii) the increase in aggregate principal amount of Notes referenced in (i) and (ii) above reflecting the payment of PIK Interest pursuant to the terms of the Indenture (the “PIK Interest Principal Amount Increase”) and
(iv) any Notes issued under the Indenture after the date hereof in exchange for or substitution of any Notes described above. For purposes of this Agreement, Notes have the same meaning as Attached Notes in the Indenture.
“Officer” means the Chairman of the Board of Directors, Chief Executive Officer, the President or a Co-President, the Chief Financial Officer, any Executive Vice-President, Senior Vice President or Vice President, the Chief Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer, the Secretary of the Company or any other person authorized by the Board of Directors.
“Officer’s Certificate” means a certificate signed by an Officer of the Company and delivered to the Units Trustee.
“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall otherwise be satisfactory to the Units Trustee.
“Outstanding,” with respect to any Unit, Note or Warrant means, as of the date of determination, all Units, Notes or Warrants, as the case may be, evidenced by Units theretofore authenticated, countersigned, executed and delivered under this Agreement, except:
(A)Units, Notes and Warrants theretofore deemed cancelled, cancelled by the Units Trustee, Warrant Agent or Trustee, as the case may be, or delivered to the Units Trustee, Warrant Agent or Trustee, as the case may be, for cancellation, in each case pursuant to the provisions of this Agreement, the Warrant Agreement or the Indenture, as the case may be; and
(B)Units, Notes and Warrants evidenced by Unit Certificates in exchange for or in lieu of which other Unit Certificates have been authenticated, countersigned, executed and delivered pursuant to this Agreement, other than any such Units, Notes or Warrants, as the case may be, evidenced by a Unit Certificate in respect of which there shall have
been presented to the Units Trustee proof satisfactory to it that such Unit Certificate is held by a bona fide purchaser in whose hands the Units, Notes and Warrants, as the case may be, evidenced by such Unit Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Units, Notes or Warrants, as the case may be, have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Units, Notes or Warrants owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Units Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or waiver, only Units, Notes and Warrants which the Units Trustee knows to be so owned shall be so disregarded. Upon request of the Units Trustee, the Company shall furnish to the Units Trustee promptly an Officer’s Certificate listing and identifying all Units, if any, owned or held by or for the account of or known by the Company to be owned or held by or for the account of the Company or any Affiliate of the Company. Units, Notes and Warrants that are so owned but that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Units Trustee the pledgee’s right so to act
with respect to such Units, Notes and Warrants and that the pledgee is not the Company or any Affiliate of the Company.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“PIK Interest” has the meaning set forth in the Indenture.
“PIK Interest Principal Amount Increase” has the meaning stated in the definition of “Notes” in this Section 1.01.
“Prohibited Event” means, with respect to any portion of the principal amount of any Unit, any repayment, repurchase, redemption or other retiring of any portion of the principal amount of Notes forming a part thereof prior to the Unit Split Date for such Unit or portion thereof (other than in connection with a Termination Event).
“Prohibited Event Unit Split Date” means a Unit Split Date occurring as a result of a Prohibited Event.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Registered Note” means any Note issued under the Indenture registered
on the Debt Security Register.
“Registered Security” means any of a Registered Note or Registered Warrant.
“Registered Unit” means any Unit in registered form consisting of Registered Securities registered on the Unit Register.
“Registered Warrant” means any Warrant in registered form registered on the Warrant Register.
“Regulation S” means Regulation S promulgated under the Securities
Act.
“Regulation S Global Unit” has the meaning stated in Section 2.01(c) of
this Agreement.
“Responsible Officer” when used with respect to the Units Trustee, shall mean an officer of the Units Trustee in the Corporate Trust Office, having direct responsibility for the administration of this Agreement, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Units Legend” has the meaning stated in Section 2.08(e) of this Agreement.
“Rule 144” means Rule 144 promulgated under the Securities Act. “Rule 144A” means Rule 144A promulgated under the Securities Act. “Rule 144A Global Units” has the meaning stated in Section 2.01(c) of
this Agreement.
“SEC” means the Securities and Exchange Commission.
“SEC Registered Exchange Offer” means that certain proposed exchange offer to be registered with the SEC that is expected to be consummated by the Company prior to June 30, 2023, pursuant to which holders of the Existing Notes who did not or who were not eligible to participate in the Initial Exchange Offer may tender and exchange their Existing Notes for Units.
“Security” means any of a Note or Warrant.
“Security Register” means either a Debt Security Register or a Warrant Register.
“Termination Event” means, with respect to the applicable principal amount Notes (and the corresponding aggregate principal amount of Units), any (i)
Permitted Equity Issuance Prepayment (as defined in the Indenture), or (ii) refinancing (as defined in the Indenture) in connection with a Change of Control (as defined in the Indenture), in each case prior to April 1, 2024.
“Termination Event Notice” means notice provided by the Notes Trustee of a Termination Event, in the form set forth in Exhibit B.
“Trading Day” has the meaning set forth in the Warrant Agreement. “Transfer Restricted Unit” means any Unit that bears or is required to
bear the Restricted Units Legend.
“Trustee”, with respect to Notes means the Person acting as Trustee under the Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of such Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“Unit” has the meaning stated in the recitals. The aggregate principal amount of Outstanding Units at any time prior to a Unit Split Date shall equal the aggregate principal amount of Outstanding Notes as provided in Section 2.04.
“Unit Certificate” means a certificate evidencing the respective rights and obligations of the Company and a Holder with respect to the aggregate principal amount of Units specified on such certificate.
“Unit Split Date” means, with respect to any Unit, the date on which such Unit is required to be separated into its constituent Securities in accordance with Article III.
“Unit Warrant Number” means, for any principal amount of Notes forming a part of any Unit (including any PIK Interest, if applicable), the number of Warrants exercisable for an aggregate number of Common Shares equal to the product of (a) (i) such principal amount of Notes part of all Outstanding Units (including any PIK Interest, if applicable) divided by (ii) the aggregate principal amount of Outstanding Notes part of all Outstanding Units (including any PIK Interest, if applicable), including any additional Notes issued as part of Units in the SEC Registered Exchange Offer, and (b) the Maximum Number of Warrant Shares, in each case, as of any time of determination. For the avoidance of doubt,
(i) the Unit Warrant Number as of the date of this Agreement shall be reduced if and to the extent the SEC Registered Exchange Offer is consummated to give effect to the issuance of Units and Notes in such transaction and (ii) the number of Common Shares for which any Warrants shall be exercisable for purposes of this definition shall be determined by reference to the Warrant Share Number (as defined in the Warrant Agreement), without taking into account any reduction in
the number of Common Shares deliverable to a Warrant holder on account of the payment of the Warrant exercise price via net settlement as provided in the Warrant Agreement. As provided in Sections 2.04, 2.08(d)(ii) and 2.08(d)(xi), promptly following an event that increases or decreases the aggregate principal amount of Outstanding Units, the Company shall calculate and transmit to the Units Trustee the Unit Warrant Number in respect of $1,000 aggregate principal amount of Notes.
“Units Trustee” means the Person named as the “Units Trustee” in the first paragraph of this Agreement until a successor Units Trustee shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Units Trustee” shall mean such successor Person.
“U.S. person” means a “U.S. person” as defined in Regulation S. “Unrestricted Global Unit” means any Unit in global form that does not
bear or is not required to bear the Restricted Units Legend.
“Warrant Agent” means the Person named as the “Warrant Agent” in the first paragraph of this Agreement until a successor Warrant Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Warrant Agent” shall mean such successor Person.
“Warrant Agreement” has the meaning stated in the recitals. “Warrant Register” with respect to any Warrants constituting a part of
the Units means the warrant register of the Company maintained by the Warrant Agent pursuant to the Warrant Agreement.
“Warrant” has the meaning stated in the recitals and shall refer to (i) any Warrant issued under the Warrant Agreement on the date hereof as part of Units issued under this Agreement on the date hereof in connection with the Initial Exchange Offer, and (ii) any Warrant issued under the Warrant Agreement after the date of this Agreement in exchange for or substitution of any Warrant described in clause (i) above (including, without limitation, upon any reallocation of any Warrants issued as part of Units under this Agreement in connection with the Initial Exchange Offer as part of Units issued under this Agreement in connection with the SEC Registered Exchange Offer). For purposes of this Agreement, Warrants shall have the same meaning as Attached Warrants in the Warrant Agreement.
ARTICLE 2 UNITS
Section 2.01. Forms Generally. (a) The Units shall be substantially in the form of Exhibit A or in such form (consistent with this Agreement) as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution, an Officer’s Certificate detailing such establishment). The
Unit Certificates may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Company executing the Securities constituting a part thereof may approve (execution thereof to be conclusive evidence of such approval) and that are consistent with the provisions of this Agreement, or as may be required to comply with any applicable law, rule or regulation, or with any rule or regulation of any self-regulatory organization on which the Units may be listed or quoted or of any securities depository or to conform to general usage.
(b)The Unit Certificates shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Unit Certificates, as evidenced by their execution of the Securities constituting a part of the Units evidenced by such Unit Certificates.
(c)Global Units. Except as provided in Sections 2.11 or 2.12, Units, including Units issued upon any transfer or exchange thereof, shall be issued in the form of one or more Global Unit Certificates, which shall be deposited on behalf of the Company with the Depositary (or, at the direction of the Depositary, with the Units Trustee or such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Units Trustee as hereinafter provided.
Upon the execution and delivery of this Agreement, the initial Global Unit Certificates shall be in the form of (1) one or more Global Unit Certificates representing Units offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act (collectively, the “IAI Global Unit”), (2) one or more Global Unit Certificates representing Units offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S (collectively, the “Regulation S Global Unit”), and (3) one or more Global Unit Certificates representing Units offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act (collectively, the “Rule 144A Global Unit”). From time to time after the date hereof, the Global Units may be represented by one or more Unrestricted Global Units, as provided in Section 2.07(a)(ii).
(d)Book-Entry Provisions. This Section 2.01(d) shall apply only to a Global Unit deposited with, at the direction of or on behalf of the Depositary.
(i)The Company shall execute and the Units Trustee shall, in accordance with Section 2.07, authenticate and countersign, either by manual or facsimile or other electronically transmitted signature, and deliver one or more Global Units that (A) shall be registered in the name of the Depositary or the nominee of the Depositary and (B) shall be delivered by the Units Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Units Trustee. Each Global Unit shall be dated the date of its countersignature by the Units Trustee.
(ii)The securities brokers and dealers, banks and trust companies, clearing organizations and other similar organizations that are participants in the Depositary’s system (the “Agent Members”) shall have no rights under this Agreement with respect to any Global Unit held on their behalf by the Depositary or by the Units Trustee as the custodian of the Depositary or under such Global Unit except to the extent set forth herein or in a Unit Certificate, and the Depositary may be treated by the Company, the Units Trustee and any agent of the Company or the Units Trustee as the absolute owner of such Global Unit for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Units Trustee or any agent of the Company or the Units Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (B) impair, as between the Depositary and the Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Unit. The rights of beneficial owners in a Global Unit shall be exercised through the Depositary subject to the applicable procedures of the Depositary, except to the extent set forth herein or in a Unit Certificate.
Section 2.02. Form of Certificate of Authentication and Countersignature.
The form of Trustee’s certificate of authentication of the Notes and the form of the Warrant Agent’s countersignature of the Warrants, each constituting a part of the Units, shall be substantially in such form as set forth in the Indenture or the Warrant Agreement, as applicable.
Section 2.03. Terms.
(a)The Units will be issued in one series, denominated as “DNU- ”.
(b)The aggregate principal amount represented by the Units that may be authenticated, countersigned and delivered under this Agreement is limited to the aggregate principal amount of the Outstanding Notes (including any Notes
issued in connection with the SEC Registered Exchange Offer) that comprise the Units (including any PIK Interest issued in respect of such Outstanding Notes) (disregarding any Units authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Units pursuant to Sections 2.11 or 2.12).
(c)All Units shall be substantially identical, other than differences in issue date, differences required in order to make Units fungible for U.S. federal tax purposes, differences required to consummate the SEC Registered Exchange Offer and, if applicable, restrictions on transfer applicable thereto.
Section 2.04. PIK Interest Principal Amount Increase. In the event of a PIK Interest Principal Amount Increase with respect to the Outstanding Notes, the principal amount of the Outstanding Units shall be increased by an amount equal to the PIK Interest Principal Amount Increase and the Units Trustee shall cause Schedule A of such Global Unit Certificates to be endorsed to reflect such increase. Notwithstanding anything in this Agreement to the contrary, no Issuer Order, Officer’s Certificate or any other notification is required for Units Trustee to reflect such increase. Following a PIK Interest Principal Amount Increase, the Units Trustee shall, consistent with the Company’s calculations of the Unit Warrant Number per $1,000 principal amount of the Notes pursuant to Section 2.08(d)(xi), reflect in its registry a decrease in the Unit Warrant Number per
$1,000 principal amount of the Notes. For the avoidance of doubt, unless the context otherwise requires, references herein to the principal amount of any Notes or Units shall be deemed to include PIK Interest.
Section 2.05 Denominations. Units shall be issued only in minimum denominations of $2,000 principal amount and integral multiples of $1.00 principal amount in excess thereof, with such amount representing the aggregate principal amount of Notes underlying such Units (as set forth in more detail in Section 2.06).
Section 2.06. Rights and Obligations Evidenced by the Units. Units shall evidence the ownership by the Holder thereof of (a) the aggregate principal amount of Notes, if any, specified in Schedule A attached to any Unit Certificate representing Global Units (including any PIK Interest) and (b) the number of Warrants, if any, representing the applicable Unit Warrant Number corresponding to such aggregate principal amount of Notes, in each case, subject to adjustments made to Schedule A pursuant to Sections 2.04 or 3.02.
Section 2.07. Execution, Authentication, Delivery and Dating.
(a)Unit Certificates.
(i)Upon the execution and delivery of this Agreement, and from time to time thereafter, the Company may deliver, subject to any limitation on the aggregate principal amount of Notes or the number of
Warrants represented thereby, an unlimited principal amount of Unit Certificates (including the Securities executed by the Company constituting the Units evidenced by such Unit Certificates) to the Units Trustee for authentication and countersignature (and the Securities constituting the Units evidenced by such Unit Certificates to the Trustee and Warrant Agent, as the case may be, for authentication and countersignature), together with its Issuer Orders for authentication and countersignature of such Units and Securities, and the Units Trustee in accordance with this Agreement, the Indenture, the Warrant Agreement and the applicable Issuer Order shall authenticate the Units evidenced by such Unit Certificate, the Trustee in accordance with the Indenture and the applicable Issuer Order shall authenticate the Notes constituting a part of the Units evidenced by such Unit Certificates, and the Warrant Agent in accordance with the Warrant Agreement and the applicable Issuer Order shall countersign the Warrants constituting a part of the Units evidenced by such Unit Certificates, and the Units Trustee shall deliver such Unit Certificates in accordance with the applicable Issuer Order. Any Notes constituting a part of the Units shall be executed on behalf of the Company in accordance with the terms of the Indenture. Any Warrants constituting a part of the Units shall be executed on behalf of the Company in accordance with the terms of the Warrant Agreement.
(ii)Units authenticated and delivered in connection with the SEC Registered Exchange Offer after the date of this Agreement will be evidenced by one or more Unrestricted Global Units and may be freely transferable without restrictions.
(b)Initial Warrant Certificates and Attached Notes.
(i)Upon the execution and delivery of this Agreement, the Company shall issue and deposit with the Units Trustee, as custodian for the beneficial owners, Initial Warrant Certificates duly executed by the Company and countersigned by the Warrant Agent as provided in the Warrant Agreement, in the form of (i) one or more Initial Warrant Certificates representing Warrants offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act, (ii) one or more Initial Warrant Certificates representing Warrants offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S, and (iii) one or more Initial Warrant Certificates representing beneficial interests in Warrants offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act. Upon the execution and delivery of this Agreement, the Company shall issue and deposit with the Units Trustee, as custodian for the beneficial owners, Attached Notes duly executed by the Company and authenticated by the Trustee as provided in the Indenture, in the form of (i) one or more Attached Notes representing
Notes offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act, (ii) one or more Attached Notes representing Notes offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S, and (iii) one or more Attached Notes representing beneficial interests in Notes offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act.
(i)Upon the consummation of the SEC Registered Exchange Offer, the Company shall deposit with the Units Trustee, as custodian for the beneficial owners, Initial Warrant Certificates duly executed by the Company and countersigned by the Warrant Agent as provided in the Warrant Agreement, representing Warrants that are freely transferable for
U.S. securities law purposes, initially including Attached Warrants forming part of Units offered and sold by the Company in the SEC Registered Exchange Offer, with Annex A of such Initial Warrant Certificates initially reflecting their representation of a number of Warrants equal to the Unit Warrant Number corresponding to the aggregate principal amount of Units issued in the SEC Registered Exchange Offer. At such time, the Units Trustee shall instruct the Warrant Agent to reflect on its registry, and on Annex A to the relevant Initial Warrant Certificates, corresponding decreases in the number of Attached Warrants represented by the other Initial Warrant Certificates based on the Unit Warrant Number represented by the principal amount of Units (including any PIK Interest if applicable) having the relevant transfer restricted status for each such Initial Warrant Certificate after giving effect to the SEC Registered Exchange Offer, with no delivery of additional instruments, certifications or legal opinions required under this Agreement or the Unit Certificates. The Units Trustee shall rely on the Company’s calculation of the Unit Warrant Number per $1,000 aggregate principal amount of Notes transmitted to the Units Trustee pursuant to Section 2.08(d)(xi) in connection with the SEC Registered Exchange Offer to calculate the Unit Warrant Number for the aggregate principal amount of Notes as part of such Units. Upon the consummation of the SEC Registered Exchange Offer, the Company shall issue and deposit with the Trustee, as custodian for the beneficial owners, Notes duly executed by the Company and authenticated by the Trustee as provided in the Indenture, in the form of one or more Attached Notes representing unrestricted Notes, initially including Notes offered and sold by the Company in the SEC Registered Exchange Offer.
Section 2.08. Registration, Transfer and Exchange of the Units.
(a)The Units Trustee shall keep at its Corporate Trust Office a register (the register maintained in such office being herein referred to as the “Unit
Register”) in which, subject to such reasonable regulations as it may prescribe, the Units Trustee shall provide for the registration of the Units.
(b)The Holder of any Global Unit will be the Depositary or a nominee of the Depositary in whose name such Global Unit is registered. The Unit holdings of Agent Members will be recorded on the books of the Depositary. The beneficial interests in any Global Unit held by customers of Agent Members will be reflected on the books and records of such Agent Members, and neither the Units Trustee, the Company nor the Depositary shall be responsible for recording such beneficial interests or their exchange exercise, cancellation of transfer.
(c)Subject to compliance with applicable securities laws and the requirements set forth in this Agreement, each Unit Certificate and all rights thereunder are transferable, in whole or in part, upon the books of the Company (or an agent duly appointed by the Company) by the Holder thereof in person or by duly authorized attorney, and one or more new Unit Certificates shall be made and delivered by the Company, of the same tenor and date as the applicable Unit Certificate so delivered but registered in the name of one or more transferees, upon surrender of such Unit Certificate, duly endorsed, to the Units Trustee. All expenses and other charges payable in connection with the preparation, execution and delivery of the new Unit Certificate pursuant to this Section 2.08(c) shall be paid by the Company, except the Holder of the old Unit Certificate surrendered for transfer shall pay to the Company a sum sufficient to cover any documentary, stamp or similar issue or transfer tax due because the name of the Holder of the new Unit Certificate issued upon such transfer is different from the name of the Holder of the old Unit Certificate surrendered for transfer.
(d)Transfer and Exchange of Global Units; Restrictions on Transfer of Global Units.
(i)In the case of a Unit Certificate that is a Global Unit, then so long as the Global Unit is registered in the name of the Depositary, (a) the holders of beneficial interests in the Units evidenced thereby shall have no rights under the Unit Certificate with respect to such Global Unit held on their behalf by the Depositary or the Units Trustee as custodian for the depositary, and (b) the Depositary may be treated by the Company, the Units Trustee and any agent of the Company or the Units Trustee as the absolute owner of such Global Unit for all purposes whatsoever, except, in each case, to the extent set forth herein. Accordingly, any such owner’s beneficial interest in the Global Unit will be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or the Agent Members, and neither the Company nor the Units Trustee shall have any responsibility with respect to such records maintained by the Depositary or the Agent Members. Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Units Trustee
or any agent of the Company or the Units Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary in respect of the Units or their constituent Securities or (ii) impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Unit. Except as otherwise may be provided in this Agreement, the rights of beneficial owners in a Global Unit shall be exercised through the Depositary subject to the applicable procedures of the Depositary. Any holder of any Global Unit shall, by acceptance of such Global Unit, agree that (x) ownership of a beneficial interest in the Units represented thereby shall be required to be reflected in book-entry form and (y) the transfer and exchange of Global Units or beneficial interests therein shall be effected through the book-entry system maintained by the Depositary, in accordance with this Agreement and the Unit Certificates and the procedures of the Depositary therefor.
(ii)If the proposed transfer is a transfer of a beneficial interest in one Global Unit to a beneficial interest in another Global Unit, subject to compliance with the applicable provisions of this Agreement, the Units Trustee shall reflect on its registry the date and an increase in the amount of the Global Unit to which such interest is being transferred in an amount equal to the amount of the interest to be so transferred, and the Units Trustee shall reflect on its registry the date and a corresponding decrease in the amount of the Global Unit from which such interest is being transferred. In connection with any such transfer, the Units Trustee shall direct the Warrant Agent and the Trustee to reflect on their respective registries, as applicable (A) the corresponding transfer of a beneficial interest in a number of Warrants equal to the Unit Warrant Number represented by the principal amount of such Units (including any PIK Interest, if applicable) so transferred and (B) the corresponding transfer of a beneficial interest in an aggregate principal amount of Notes equal to the aggregate principal amount of such Units (including any PIK Interest, if applicable) so transferred, in each case having the same transfer restricted status as the relevant Units in the manner contemplated by this Section
2.08. The respective registries shall reflect the date and the amount of the increase in the corresponding Warrants and Notes referenced above forming part of such Units to which such interest is being transferred and shall reflect the date and the amount of the decrease in the corresponding Warrants and Notes forming part of such Units from which such interests are being transferred. The Units Trustee shall rely on the Company’s most recent calculation of the Unit Warrant Number per $1,000 aggregate principal amount of Notes transmitted to the Units Trustee pursuant to Section 2.08(d)(xi) to calculate the Unit Warrant Number for the aggregate principal amount of Notes so transferred as part of such Units.
(iii)Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 2.11), a Global Unit may only be transferred as a whole, and not in part, and only by (A) the Depositary, to a nominee of the Depositary, (B) a nominee of the Depositary, to the Depositary or another nominee of the Depositary, or (C) the Depositary or any such nominee to a successor Depositary or its nominee.
(iv)In the event that a Global Unit is exchanged for Definitive Units pursuant to Section 2.11, such Units may be exchanged only in accordance with the provisions of this Section 2.08 and Section 2.11 and such other procedures as may from time to time be adopted by the Company that are not inconsistent with the terms of this Agreement or of any Unit Certificate.
(v)Transfers by an owner of a beneficial interest in a Rule 144A Global Unit or an IAI Global Unit to a transferee who takes delivery of such interest through another Transfer Restricted Unit shall be made in accordance with the applicable procedures of the Depositary and the Restricted Units Legend and only upon receipt by the Units Trustee of a written certification from the transferor in the form attached as Annex 1 to the Unit Certificate for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Unit or a Rule 144A Global Unit for an interest in an IAI Global Unit, the transferee must furnish a signed letter substantially in the form attached as Annex 2 to the Unit Certificate to the Units Trustee.
(vi)During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Unit may only be sold, pledged or transferred in accordance with the applicable procedures of the Depositary, the Restricted Units Legend on such Regulation S Global Unit and any applicable securities laws of any state of the U.S. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Unit to a transferee who takes delivery of such interest through a Rule 144A Global Unit or an IAI Global Unit shall be made only in accordance with the applicable procedures of the Depositary and the Restricted Units Legend and upon receipt by the Units Trustee of a written certification from the transferor of the beneficial interest in the form attached as Annex 1 to the Unit Certificate for exchange or registration of transfers. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period. Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S
Global Unit shall be transferable in accordance with applicable law and the other terms of this Agreement.
(vii)Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Unit may be exchanged for beneficial interests in an Unrestricted Global Unit upon certification in the form attached as Annex 1 to the Unit Certificate for an exchange from a Regulation S Global Unit to an Unrestricted Global Unit.
(viii)Beneficial interests in a Transfer Restricted Unit that is a Rule 144A Global Unit or an IAI Global Unit may be exchanged for beneficial interests in an Unrestricted Global Unit if the Holder certifies in writing to the Units Trustee that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth in Annex 1 attached to the Unit Certificate) and/or upon delivery of such legal opinions, certifications and other information as the Company or the Units Trustee may reasonably request.
(ix)If no Unrestricted Global Unit is Outstanding at the time of a transfer contemplated by the preceding clauses (vii) and (viii), the Company shall issue and the Units Trustee shall countersign, upon a written order for countersignature of such Unrestricted Global Unit, a new Unrestricted Global Unit in the appropriate principal amount.
(x)The Company shall promptly notify the Units Trustee in writing upon the occurrence of the Resale Restriction Termination Date.
(xi)Promptly following the consummation of the SEC Registered Exchange Offer, a PIK Interest Principal Amount Increase as provided in Section 2.04, an adjustment to the Maximum Number of Warrant Shares or such other event as may cause a change in the Unit Warrant Number, the Company shall transmit to the Units Trustee in writing the calculation, as of such date of determination, of the applicable Unit Warrant Number per $1,000 principal amount of Notes (calculated to the nearest 1/1000 of a Warrant). The Company shall make these calculations in good faith and in a commercially reasonable manner and absent manifest error, such calculations shall be final and binding on the Holders, the owners of a beneficial interest in the applicable Units, the Units Trustee and the Warrant Agent.
(e)Restricted Units Legends. Except as permitted by Section 2.08(d), and Section 2.11, each Unit Certificate evidencing the Global Units and the Definitive Units (and all Units issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term
in the legend being defined as such for purposes of the legend only) (“Restricted Units Legend”):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF UNITS WITH A RULE 144A OR IAI CUSIP: [ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT][IN THE CASE OF UNITS WITH A REGULATION S CUSIP: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE UNITS TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF UNITS WITH A REGULATION S CUSIP: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS FORMING PART OF THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE
OR ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES (A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
Each Definitive Unit that is a Transfer Restricted Unit shall bear the following additional legend (“Definitive Units Legend”):
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE UNITS TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE UNITS TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(f)Obligations with respect to transfers and exchanges of Units.
(i)To permit registrations of transfers and exchanges, the Company shall execute and the Units Trustee shall, upon the relevant Holder’s delivery to the Units Trustee of the applicable Unit Certificate to be transferred in whole or in part and satisfaction of the other requirements for such transfer as set forth herein, countersign, either by manual or facsimile or other electronically transmitted signature, new Global Units and Definitive Units as required pursuant to the provisions of Section 2.07 and this Section 2.08. In addition, a transferor of a Global Unit or a Definitive Unit shall deliver to the Units Trustee a written instruction of transfer in the form attached to the Unit Certificate as Annex 1, duly executed by the Holder thereof or by its attorney, duly authorized in writing. Additionally, prior to registration of any transfer or exchange of a Unit, the requirements for the Unit issued upon such transfer or exchange to be issued in a name other than the Holder shall be met. Such requirements include, inter alia, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association (at a guarantee level reasonably acceptable to the Company’s transfer agent), and any other reasonable evidence of authority that may be required by the Units Trustee. Upon satisfaction of the conditions in this clause (i), the Units
Trustee shall, in accordance with such instructions, register the transfer or exchange of the relevant Global Unit or Definitive Unit.
(ii)No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment from a Holder of a sum sufficient to cover any transfer tax, assessments or similar governmental charge payable in connection therewith as set forth in Section 2.08(c). The Units Trustee shall have no duty or obligation pursuant to any Section of this Agreement requiring the payment of taxes, assessments, and/or governmental charges, unless and until the Units Trustee is satisfied that all such taxes, assessments, and/or governmental charges have been paid.
(iii)Each Unit Certificate shall be exchangeable, upon the surrender thereof by the Holder to the Units Trustee, for a new Unit Certificate or Unit Certificates of like tenor and representing the same aggregate principal amount of Units.
(iv)All Units issued upon any transfer or exchange pursuant to the terms of this Agreement shall be the valid obligations of the Company, entitled to the same benefits under this Agreement as the Units surrendered upon such transfer or exchange.
(g)No obligation of the Units Trustee.
(i)The Units Trustee shall have no responsibility or obligation to any owner of a beneficial interest in a Global Unit, any Agent Member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any beneficial ownership interest in the Units represented by such Global Unit or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Units. All notices and communications to be given to the Holders and all payments to be made to Holders under the Units shall be given or made only to or upon the order of the Holders (which shall be the Depositary or its nominee in the case of a Global Unit). Except as set forth herein, the rights of owners of beneficial interests in any Global Unit shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Units Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(ii)The Units Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Unit (including any transfer between or among the Agent Members or beneficial owners in any Global Unit) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Agreement and the Unit Certificate, and to examine the same to determine substantial compliance as to form with the express requirements hereof and thereof.
Section 2.09. Persons Deemed Owners. Prior to due presentment of a certificate evidencing a Registered Unit for registration of transfer, the Company, the Trustee, the Warrant Agent and the Units Trustee, as applicable, and any agent of the Company, the Trustee, the Warrant Agent or the Units Trustee, as applicable, may treat the Person in whose name any Registered Security evidenced by such Unit Certificate is registered as the owner of the Units evidenced thereby for all purposes whatsoever, whether or not payment with respect to any Security constituting a part of the Units evidenced thereby shall be overdue and notwithstanding any notice to the contrary. None of the Company, the Trustee, the Warrant Agent, the Units Trustee or any agent of the Company, the Trustee, the Warrant Agent or the Units Trustee shall be affected by notice to the contrary.
Section 2.10. Proxies. The Holder of a Global Unit may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold beneficial interests through Agent Members, to take any action that a Holder is entitled to take under this Agreement or the Units in accordance with the Depositary’s and the relevant Agent Member’s customary procedures. The Units Trustee, as the registered holder and custodian of the Attached Warrants and Attached Notes, on behalf of the beneficial owners, is entitled to take action in respect of the Warrants, the Warrant Agreement, the Notes and the Indenture, at the direction of the Holders of Global Units in accordance with the Depositary’s and the relevant Agent Member’s customary procedures. For the avoidance of doubt, the Units Trustee is entitled, as the holder of the Attached Notes and Attached Warrants, to take any actions or exercise any rights under the Warrant Agreement or Indenture as and to the same extent as the Warrant Agent or Trustee would be permitted to take upon the direction of holders of the Notes and the Warrants, respectively, at the direction of the Holders of Global Units in accordance with the Depositary’s and the relevant Agent Member’s customary procedures.
Section 2.11. Exchange of Global Units and Definitive Units.
(a)Holders of Global Units shall receive Definitive Units in exchange for interests in such Global Units only if (i) DTC notifies the Company that it is unwilling or unable to continue as Depositary with respect to the Global Units or
if at any time it ceases to be a clearing agency under the Exchange Act, and a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days after receipt of such notice or after it becomes aware that DTC has ceased to be such a clearing agency or (ii) a default under the Warrant Agreement of Warrants has occurred and is continuing and the Units Trustee has received a request from the Depositary.
(b)All Definitive Units issued upon exchange pursuant to this Section
2.11 shall be the valid obligations of the Company, evidencing the same obligations of the Company and entitled to the same benefits under this Agreement as the Global Unit, or portion thereof, surrendered upon such exchange.
(c)Upon any sale or transfer of a Transfer Restricted Unit that is a Definitive Unit, the Units Trustee shall permit the Holder thereof to exchange such Transfer Restricted Unit for a Definitive Unit that does not bear the Restricted Units Legend and the Definitive Units Legend and rescind any restriction on the transfer of such Transfer Restricted Unit if the Holder certifies in writing to the Units Trustee that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form attached as Annex 1 to the Unit Certificate) and provides such legal opinions, certifications and other information as the Company or the Units Trustee may reasonably request.
(d)In the event of the occurrence of any of the events specified in Section 2.11(a), the Company will promptly make available to the Units Trustee a reasonable supply of Definitive Units in definitive, fully registered form.
(e)Neither the Company nor the Units Trustee will be liable or responsible for any registration or transfer of any Units that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary.
Section 2.12. Mutilated, Destroyed, Lost and Stolen Unit Certificates. If any mutilated Unit Certificate is surrendered to the Units Trustee, the Company shall execute and deliver to the Units Trustee, Trustee and the Warrant Agent, as appropriate, and the Units Trustee, Trustee and the Warrant Agent shall authenticate, countersign and deliver, as appropriate, in exchange therefor, new Securities comprised by Units, of like tenor and evidenced by a new Unit Certificate evidencing the same aggregate principal amount of Units and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee and the Warrant Agent and/or the Units Trustee, as appropriate, (i) evidence to their satisfaction of the destruction, loss or theft of any Unit Certificate and (ii) such security or indemnity as may be required by them to hold each of them and any agent of any
of them harmless, then, in the absence of notice to the Company and the Trustee and the Warrant Agent as appropriate, that such Unit Certificate has been acquired by a bona fide purchaser, the Company shall execute and deliver to the Trustee and the Warrant Agent and/or the Units Trustee, as appropriate, and the Trustee in accordance with the Indenture shall authenticate the Notes constituting a part of the Units evidenced by such Unit Certificates, the Warrant Agent in accordance with the Warrant Agreement shall countersign the Warrants constituting a part of the Units evidenced by such Unit Certificates, and the Units Trustee in accordance with this Agreement, the Indenture, the Warrant Agreement shall authenticate the Units, and the Units Trustee shall deliver to the Holder, as appropriate, in lieu of any such destroyed, lost or stolen Unit Certificate, new Securities comprised by Units, of like tenor and evidenced by a new Unit Certificate evidencing the same aggregate principal amount of Units and bearing a number not contemporaneously outstanding.
Unless otherwise specified pursuant to Section 2.03, notwithstanding the foregoing and subject expressly to Section 3.01, the Company shall not be obligated to execute and deliver to the Trustee, the Warrant Agent or the Units Trustee, and none of the Trustee (under the Indenture), the Warrant Agent (under the Warrant Agreement), or the Units Trustee shall be obligated to authenticate, countersign or deliver to the Holder, a new Unit Certificate (or any Security constituting a part of such Unit) under this Section 2.12 during the period beginning any time on or after the opening of business 15 days before the day of mailing of a notice of redemption or of any other exercise of any right held by the Company with respect to the Unit (or any Security constituting a part of such Unit) and ending at the close of business on the day of the giving of such notice, that evidences any Unit or Security selected or called for redemption or with respect to which such right has been exercised. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified in clauses (i) and (ii) of the preceding paragraph, the Units Trustee shall deliver or cause to be delivered on the applicable redemption date in respect of Notes constituting a part of the
Units evidenced by such Unit Certificate that are selected or called for redemption, the redemption price of such Notes.
Upon the issuance of any new Unit Certificate under this Section, the Company and the Units Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Units Trustee) connected therewith.
Every new Unit Certificate executed pursuant to this Section in lieu of any destroyed, lost or stolen Unit Certificate shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Unit Certificate (and the Securities evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Unit Certificates.
Section 2.13. Payments to Beneficial Owners. All amounts received by the Units Trustee, as the holder of the Attached Notes, under the Indenture in respect of Attached Notes, including cash interest or on account of payments made in respect of Section 3.07, 3.10, 4.15 and 4.16 of the Indenture shall be distributed ratably to the Holders of the Units (calculated as of the applicable Record Date (as defined in the Indenture)).
Section 2.14 Cancellation. All Unit Certificates surrendered for payment, and all Unit Certificates surrendered for redemption of any Notes shall, if surrendered to any Person other than the Trustee, the Warrant Agent or the Units Trustee, as appropriate, be delivered to the Trustee, the Warrant Agent and/or the Units Trustee, as appropriate, and, if not already cancelled, any Note or Warrant evidenced by such Units shall be promptly cancelled by the Trustee, the Warrant Agent and/or the Units Trustee, as appropriate; provided that if such surrender for payment or redemption is not accompanied by a Termination Event Notice and, if required by the Units Trustee, an Opinion of Counsel, a Prohibited Event Unit Split Date with respect to such Units shall be deemed to occur as of the date of payment or redemption, as applicable, and for each principal amount of a Unit subject to such Prohibited Event Unit Split Date, there shall immediately separate from such Unit as provided in Section 3.01 a number of Warrants equal to the Unit Warrant Number corresponding to such principal amount as of the time of such separation (subject to Section 3.08(b) of the Warrant Agreement), which separated Warrants shall be freely transferrable and, for the avoidance of doubt, such Warrants shall not be cancelled. No Unit Certificates shall be authenticated and countersigned in lieu of or in exchange for any Unit Certificates cancelled as provided in this Section. All cancelled Unit Certificates held by the Units Trustee shall be disposed of in accordance with its customary procedures and evidence of their disposition shall be delivered by the Units Trustee to the Company.
If the Company or any Affiliate of the Company shall acquire any Unit Certificate in connection with a Termination Event, such acquisition shall not operate as a cancellation of such Unit Certificate unless and until such Unit Certificate is delivered to the Trustee, the Warrant Agent and/or the Units Trustee, as appropriate, for the purpose of cancellation. If the Company or any Affiliate of the Company shall acquire any Unit Certificate in connection with a Prohibited Event, a Prohibited Event Unit Split Date with respect to such Units shall be deemed to occur as of the date of payment or redemption, as applicable, of the
Notes, and the Warrants shall be separated from such Units as provided in Section 3.01(a) and, for the avoidance of doubt, such Warrants shall not be cancelled.
Section 2.15 Tax Treatment. Each Holder acknowledges that (i) the Company intends to treat each Unit as a single contingent payment debt instrument for U.S. federal income tax purposes and (ii) the Holder is required to treat each Unit in a manner consistent with the Company’s determinations absent appropriate disclosure to the Internal Revenue Service. A Holder may obtain the comparable yield and the projected payment schedule of the Units by submitting a written request for it to the Company at c/o Diebold Nixdorf, Incorporated, 50 Executive Parkway, PO Box 2520, Hudson, Ohio 44236-1605, Attention: Corporate Secretary.
ARTICLE 3 SEPARATION OF UNITS
Section 3.01. Separation of Units. With respect to any Unit, such Unit (or, if less than the aggregate principal amount of such Unit, the affected principal amount thereof) shall be separated into its constituent Securities in accordance with the separation and notification procedures set forth in Section 3.02 on the first Business Day that is also a Trading Day on or after the earliest to occur of
(x) the Prohibited Event Unit Split Date with respect to the principal amount of Notes comprising all or part of such Unit, (y) the date on which any Event of Default under the Indenture shall have occurred and the indebtedness under the Indenture shall have been accelerated pursuant to Section 6.02 thereof and
(z)April 1, 2024.
Section 3.02. Separation, Adjustment and Notification Procedures.
(a)Upon any of (x) the receipt by the Units Trustee of a Prohibited Event Unit Split Date Notice (substantially in the form attached hereto as Exhibit C-1), (y) the receipt by the Units Trustee of an Indenture Default Notice (substantially in the form attached hereto as Exhibit C-2) and (z) if any Units remain Outstanding on such date, April 1, 2024, the Units Trustee shall promptly cause to be separated the Warrants and, if not separately paid and cancelled in connection with one or more Prohibited Events, the Notes related to the Units subject to the relevant Unit Split Date, and all such Units shall be cancelled, and the applicable Warrants and Notes shall be freely transferrable (subject to applicable securities laws). Whenever Global Units are separated, the Units Trustee shall give effect to such separation by causing Schedule A of the Global Unit to be endorsed and the Unit Register to be updated to reflect any decrease in the Global Units as a result of such separation, the Trustee shall cause the Attached Notes (representing the Notes prior to such separation that form a part of the Units) and Schedule A of the Global Notes (representing the Notes following
such separation) to be endorsed to reflect such separation and the Warrant Agent shall cause the Initial Warrant Certificates (representing the Warrants prior to such separation that form a part of the Units) and Schedule A of the Global Warrant (representing Warrants following such separation) to be endorsed to reflect such separation. For the portion of the principal amount of any Unit being so separated, the number of such separated Warrants shall be equal to the Unit Warrant Number corresponding to the relevant principal amount of Notes forming a part of such Unit (including any PIK Interest, if applicable) as of the time of separation, subject to Section 3.08(b) of the Warrant Agreement.
(b)Upon the completion of the foregoing procedures, such Warrants and, if applicable, Notes may be transferred, assigned or exchanged by the Holder thereof separately (subject to applicable securities laws), and will be represented by separate interests on the books of the respective agent and/or trustee, as of April 1, 2024, or, if the relevant Unit Split Date occurs prior to April 1, 2024, generally within one Business Day of such Unit Split Date (including any applicable Prohibited Event Unit Split Date), and the Company shall take commercially reasonable efforts to have the Warrants and the Notes issued on such date (to the extent not previously issued), and will have used commercially reasonable efforts to procure CUSIP numbers for such securities, and to have such CUSIP numbers made eligible for DTC, for such purpose prior to the date of separation, in the form of one or more fully registered global securities which will be deposited with, or on behalf of, DTC and will be registered in the name of a nominee of DTC. Unless otherwise required by applicable law, any such Warrants shall be delivered free from any restrictive legends and bearing an unrestricted CUSIP number. Upon the completion of such procedures, the Units Trustee shall inform each Holder of such completion within one Business Day.
(c)As early as practical preceding any Unit Split Date, the Company shall (x) deliver a Prohibited Event Unit Split Date Notice or an Indenture Default Notice, as the case may be, to the Warrant Agent and the Units Trustee, if the relevant Unit Split Date occurs prior to April 1, 2024, and (y) calculate and transmit to the Warrant Agent and the Units Trustee a written notice of the Unit Warrant Number, the number of separated Warrants and the amount of cash, if any, payable in lieu of issuing any fractional Warrant as provided in Section 3.08(b) of the Warrant Agreement, for each Unit to which the Unit Split Date relates and a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made, and the Units Trustee shall cause such notice and statement to be sent or communicated to the Holders and owners of a beneficial interest in the applicable Units. The Company shall make these calculations in good faith and in a commercially reasonable manner and absent manifest error, such calculations shall be final and binding on the Holders, the owners of a beneficial interest in the applicable Units, the Units Trustee and the Warrant Agent. Neither the Warrant Agent nor the Units Trustee
shall have any duty or obligation to make such calculations or investigate or confirm whether the Company’s calculations are accurate or correct.
ARTICLE 4
Other Provisions Relating to Rights of Holders of Units
Section 4.01. Holder May Enforce Rights. Any Holder of Units may, without the consent of the Units Trustee, the Depositary, any participant of the Depositary or any other Holder, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce its rights under this Agreement; provided that a Holder of Units may only enforce its rights under the Securities comprised by such Unit in accordance with the terms of the Indenture and the Warrant Agreement, as applicable.
ARTICLE 5 THE UNITS TRUSTEE
Section 5.01. Certain Duties and Responsibilities. (a) The Units Trustee undertakes to perform such duties, and only such duties, as are specifically set forth in this Agreement.
(b)No provision of this Agreement shall be construed to relieve the Units Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(i)the duties and obligations of the Units Trustee with respect to the Units shall be determined solely by the express provisions of this Agreement and the Units and the Units Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and in the Units, and no implied covenants or obligations shall be read into this Agreement or the Units against the Units Trustee; and
(ii)in the absence of bad faith on its part, the Units Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Units Trustee and conforming to the requirements of this Agreement or the Units but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Units Trustee, the Units Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement or the Units, as
applicable (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)The Units Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Units Trustee was negligent in ascertaining the pertinent facts.
(d)No provision of this Agreement or the Units shall require the Units Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e)Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Units Trustee shall be subject to the provisions of this Section.
(f)In no event shall the Units Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether it has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g)In no event shall the Units Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Agreement or the Units arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and, provided such events are beyond the reasonable control of the Units Trustee, interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 5.02. Certain Rights of Units Trustee. Subject to the provisions of Section 5.01:
(a)the Units Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b)any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate or Issuer Order and any resolution of the Board of Directors of the Company, as the case may be, may be sufficiently evidenced by a Board Resolution;
(c)the Units Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d)the Units Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Units Trustee, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the issuance of the Notes or the Warrants, as the case may be, and, if the Units Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, at reasonable times during normal business hours, personally or by agent or attorney (and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation);
(e)the Units Trustee may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Units Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; and
(f)the Units Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.
Section 5.03. Not Responsible for Recitals or Issuance of Units. The recitals contained herein, in the Indenture, in the Warrant Agreement and in the Units, except the Trustee’s and Warrant Agent’s certificates of authentication or countersignature, shall be taken as the statements of the Company, and none of the Trustee, Units Trustee or the Warrant Agent assumes any responsibility for their correctness. The Units Trustee makes no representations as to the validity or sufficiency of this Agreement or of the Units. None of the Trustee, Units Trustee or the Warrant Agent shall be accountable for the use or application by the Company of the proceeds with respect to Units or be responsible for exercising any remedy hereunder on behalf of the Holders, except as expressly provided in this Agreement.
Section 5.04. May Hold Units. The Units Trustee, the Trustee, the Warrant Agent, or any other agent of the Company, the Trustee, the Warrant Agent, or the Units Trustee, in its individual or any other capacity, may become the owner or pledgee of Units and may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not such other agent, the Trustee, the Warrant Agent or the Units Trustee.
Section 5.05. Compensation and Reimbursement. The Company agrees:
(a)to pay to the Units Trustee from time to time such compensation for all services rendered by it hereunder as mutually agreed to between the Units Trustee and the Company;
(b)except as otherwise expressly provided herein, to reimburse the Units Trustee and any predecessor Units Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Units Trustee in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c)to indemnify the Units Trustee and any predecessor Units Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Agreement and its duties hereunder and the enforcement of this Agreement (including this Section 5.05), including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
Section 5.06. Corporate Agent Required; Eligibility. There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal, state or District of Columbia authority and willing to act on reasonable terms. If such corporation, or its parent, publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Units Trustee hereunder shall at all times be the Trustee under the Indenture and the Warrant Agent under the Warrant Agreement, subject to receipt of an Opinion of Counsel that the same Person is precluded by law from acting in such capacities. If at any time the Units Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in Section 5.07. The Units Trustee may appoint one or more sub-trustees with offices or agencies in a city or cities outside the United States.
Section 5.07. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Units Trustee and no appointment of a successor Units Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Units Trustee in accordance with the applicable requirements of Section 5.08.
(b)The Units Trustee may resign by giving written notice thereof to the Company and the Holders, in accordance with Section 6.06 and Section 6.07, 60 days prior to the effective date of such resignation. The Units Trustee may be removed at any time upon 60 days’ notice by the filing with it of an instrument in writing signed on behalf of the Company and specifying such removal and the date when it is intended to become effective. If the instrument of acceptance by a successor Units Trustee required by Section 5.08 shall not have been delivered to the Units Trustee within 30 days after the giving of such notice of resignation, the resigning Units Trustee may petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Units Trustee.
(c)If at any time (i) the Units Trustee shall cease to be eligible under Section 5.06, or shall cease to be eligible as Trustee under the Indenture or as Warrant Agent under the Warrant Agreement, and shall fail to resign after written request therefor by the Company or by any Holder, or (ii) the Units Trustee shall become incapable of acting with respect to the Units or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Units Trustee or of its property shall be appointed or any public officer shall take charge or control of the Units Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company, by Board Resolution, may remove the Units Trustee and appoint a successor Units Trustee, or (B) any Holder who has been a bona fide Holder of Units for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction, at the expense of the Company, for the removal of the Units Trustee and the appointment of a successor Units Trustee or Trustees. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Units Trustee and appoint a successor Units Trustee.
(d)If the Units Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Units Trustee for any cause, the Company, by Board Resolution, shall promptly appoint a successor Units Trustee or Trustees (other than the Company) and shall comply with the applicable requirements of Section 5.08. If no successor Units Trustee shall have been so appointed by the Company and accepted appointment in the manner required by Section 5.08, any Holder who has been a bona fide Holder of Units for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Units Trustee.
(e)The Company shall give, or shall cause such successor Units Trustee to give, notice of each resignation and each removal of the Units Trustee and each appointment of a successor Units Trustee to all Holders of Units in accordance with Section 6.07. Each notice shall include the name of the successor Units Trustee and the address of its Corporate Trust Office.
Section 5.08. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Units Trustee, every such successor Units Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Units Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Units Trustee shall become effective and such successor Units Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Units Trustee, with like effect as if originally named as Units Trustee hereunder; but, on the request of the Company or the successor Units Trustee, such retiring Units Trustee shall, upon payment of all amounts due and payable to it pursuant to Section 5.05, execute and deliver an instrument transferring to such successor Units Trustee all the rights and powers of the retiring Units Trustee and shall duly assign, transfer and deliver to such successor Units Trustee all property and money held by such retiring Units Trustee hereunder. Any retiring Units Trustee shall, nonetheless, retain a prior claim upon all property or funds held or collected by such Units Trustee to secure any amounts then due it pursuant to Section 5.05.
(b)Upon request of any such successor Units Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Units Trustee all such rights, powers and agencies referred to in paragraph (a) of this Section.
(c)No successor Units Trustee shall accept its appointment unless at the time of such acceptance such successor Units Trustee shall be eligible under Section 5.06.
(d)Upon acceptance of appointment by any successor Units Trustee as provided in this Section, the Company shall give notice thereof to the Holders of Units in accordance with Section 6.07. If the acceptance of appointment is substantially contemporaneous with the resignation of the Units Trustee, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.07. If the Company fails to give such notice within ten days after acceptance of appointment by the successor Units Trustee, the successor Units Trustee shall cause such notice to be given at the expense of the Company.
Section 5.09. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Units Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Units Trustee shall be a party, or any corporation succeeding to all or substantially all the agency business of the Units Trustee, shall be the successor of the Units Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise eligible under this Article.
Section 5.10. Tax Compliance. (a) The Units Trustee, on its own behalf and on behalf of the Company, will comply with all applicable certification, information reporting and withholding (including “backup” withholding) requirements imposed by applicable United States, federal and New York State tax laws, regulations or administrative practice (i) with respect to payments on, or transfer or redemption of the Notes or the Warrants or (ii) if specifically instructed by the Company, with respect to the issuance, delivery, holding, or exercise of rights (other than by payment, transfer or redemption) under the Notes or the Warrants. Such compliance shall include, without limitation, the preparation and timely filing of required returns with respect to, and the timely payment of, all amounts required to be withheld to the appropriate taxing authority or its designated agent. The Company will provide to the Units Trustee such information as it may reasonably request in order to comply with this Section.
(b)The Units Trustee shall comply with any direction received from the Company with respect to the application of such requirements to particular payments or holders or in other particular circumstances, and may for purposes of this Agreement rely on any such direction in accordance with the provisions of Section 5.01(b)(2) hereof.
(c)The Units Trustee shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available on request at reasonable times during normal business hours to the Company or to their authorized representatives duly authorized in writing.
ARTICLE 6 MISCELLANEOUS PROVISIONS
Section 6.01. Amendments. (a) This Agreement and the terms of the Units may be amended (by means of an agreement supplemental hereto or otherwise) by the Company and the Units Trustee, without the consent of the Holders, (i) for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein,
(ii) to evidence and provide for the acceptance of appointment hereunder by a successor Units Trustee with respect to the Units, (iii) for the purposes of
providing for compliance with the applicable securities laws (to the extent there are changes in applicable law following the date hereof), including with respect to the transfer restrictions set forth herein, or (iv) in any other manner which the Company may deem necessary or desirable and which will not adversely affect the interests of the affected Holders.
(b)The Company and the Units Trustee may modify or amend this Agreement (by means of an agreement supplemental hereto or otherwise) with the consent of Holders holding not less than a majority in aggregate principal amount of the then Outstanding Units affected thereby for any purpose; provided, however, that no such modification or amendment that materially and adversely affects (i) the exercise or separation rights of the affected Holders or reduces the percentage of the principal amount of Outstanding Units the consent of the Holders of which is required for modification or amendment of this Agreement, or (ii) any Key Provision or any Key Definition may be made without the consent of each Holder materially and adversely affected thereby. In the case of Units evidenced by one or more Global Unit Certificates, the Company and the Units Trustee shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Unit Certificate. Such certification may be provided by participants of the Depositary acting on behalf of such beneficial owners of Units, provided that any such certification is accompanied by a certification from the Depositary as to the Unit holdings of such participants. For
purposes hereof, “Key Provisions” shall include each of Sections 2.03, 2.05, 3.01, 3,02, 4.01 and this Section 6.01, and “Key Definitions” shall include “Maximum Number of Warrant Shares,” “Prohibited Event,” “Prohibited Event Unit Split Date,” “Unit,” “Unit Split Date,” “Unit Warrant Number,” “Termination Event,” “Warrant” and “Warrant Agreement.” For the avoidance of doubt, any and all calculations or determinations made by the Company, the Units Trustee, the Trustee, the Warrant Agent or their authorized representatives in accordance with the Key Provisions and Key Definitions shall not be considered an amendment or modification of this Agreement.
(c)Upon the request of the Company, accompanied by a copy of a Board Resolution (which Board Resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Officer’s Certificate) authorizing the execution of any such amendment, and upon the filing with the Units Trustee of evidence of the consent of Holders as aforesaid, the Units Trustee shall join with the Company in the execution of such amendment unless such amendment affects the Units Trustee’s own rights, duties or immunities under this Agreement or otherwise, in which case the Units Trustee may in its discretion, but shall not be obligated to, enter into such amendment. In executing, or accepting the additional duties created by, any amendment permitted by this Section, the Units Trustee shall receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and is enforceable against the Company in accordance with its terms. The fact and date of the execution of any consent of Holders, or the authority of the Person executing the same, may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the person executing the same. The ownership of Registered Units shall be proved by the Unit Register or by a certificate of the Units Trustee, as registrar for the Units. For the avoidance of doubt, such action may relate to the Units as well as to its constituent Securities, this Agreement, the Warrant Agreement and the Indenture for so long as any Warrants and Notes have not separated pursuant to Article III hereof and form part of Outstanding Units.
The Depositary shall report only one result of each solicitation of proxies to the Units Trustee.
(d)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.
(e)The Company may set a record date for purposes of determining the identity of Holders of Registered Units entitled to consent to any action by consent authorized or permitted hereby. Such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Registered Units furnished to the Units Trustee. The ownership of Registered Units shall be proved by the Unit Register. The Units Trustee shall vote as the custodian of the Warrants and Notes in respect of any action relating to such Securities or the Warrant Agreement or the Indenture in the manner directed by the Holders of the Registered Units. Any notices received by the Units Trustee shall be distributed to Holders of Units within two Business Days.
Section 6.02. Incorporators, Shareholders, Officers and Directors of the Company Immune from Liability. No recourse under or upon any obligation, covenant or agreement contained in this Agreement, or in any Warrant Agreement or any Notes and/or Warrants, or because of any indebtedness evidenced thereby, shall be had against any incorporator, or against any past, present or future shareholder, officer, attorney-in-fact or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or penalty or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Units by the Holders thereof and as part of the consideration
for the issue thereof, provided that nothing in this Article shall impair the obligations, covenants and agreements of the Company contained in this Agreement and in any Notes and/or Warrants constituting a part of the Units.
Section 6.03. Compliance Certificates and Opinions. Except as otherwise expressly provided by this Agreement, upon any application or request by the Company to the Units Trustee to take any action under any provision of this Agreement, the Company, as applicable, shall furnish to the Units Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(i)a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(ii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(iii)a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 6.04. Form of Documents Delivered to Units Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer or Opinion of Counsel of or for the Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion is based are erroneous. Any such certificate, statement or opinion may be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of, or representations by, an officer or officers of the Company, as applicable, stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument.
Section 6.05. Maintenance of Office or Agency. So long as Units are authorized for issuance pursuant to this Agreement or are Outstanding hereunder, the Company will maintain an office or agency where Units may be presented or surrendered for delivery, where Units may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of Units and this Agreement may be served. The Company hereby initially designates the Units Trustee for each of said purposes. The Company will give prompt written notice to the Units Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Units Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Units Trustee, and the Company hereby appoints the Units Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where Units may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain offices or agencies provided for in this Section 6.05. The Company will give prompt written notice to the Units Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 6.06. Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,
(a)the Units Trustee, by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, to the Units Trustee at its Corporate Trust Office, 1350 Euclid Avenue, Suite 1100, Cleveland, Ohio 44115, Attention: Global Corporate Trust or at any other address previously furnished in writing by the Units Trustee to the Holders and the Company, or
(b)the Company by the Units Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, addressed to the Company at c/o Diebold Nixdorf, Incorporated, 5995 Mayfair Road, PO Box 3077, North Canton, Ohio 44720, Attention: Jonathan B. Leiken, or at any other address previously furnished in writing to the Units Trustee by the Company.
Section 6.07. Notices to Holders. Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the Registry and shall be sufficiently given if so mailed within the time prescribed.
Any notice to the owners of a beneficial interest in a Global Unit shall be distributed through the Depositary in accordance with the procedures of the Depositary. Communications to owners shall be deemed to be effective at the time of dispatch to the Depositary. Failure to provide a notice or communication to a Holder or owner of a beneficial interest in a Global Unit or any defect in it shall not affect its sufficiency with respect to other Holders or owners of a beneficial interest in a Global Unit. If a notice or communication is provided in the manner provided above, it is duly given, whether or not the intended recipient actually receives it. Any notice received by the Units Trustee in respect of the Attached Warrants or Attached Notes shall be transmitted by the Unit Trustee to the Holders as provided in this Section 6.07.
Section 6.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 6.09. Successors and Assigns. All covenants and agreements in this Agreement, the Units and the Unit Certificates by the Company shall bind its successors and assigns, whether so expressed or not.
Section 6.10. Separability Clause. In case any provision in this Agreement or in the Units, Unit Certificates or Notes or Warrants shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
Section 6.11. Benefits of Agreement. Nothing in this Agreement or in the Units, Unit Certificates, the Indenture or the Warrant Agreement, the Notes or the Warrants, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of any Units, any benefits or any legal or equitable right, remedy or claim under this Agreement.
Section 6.12. Governing Law; Waiver of Trial by Jury. This Agreement, the Units, the Unit Certificates, the Notes and the Warrants shall be governed by, and construed in accordance with, the laws of the State of New York. The Company and the Units Trustee irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 6.13. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like importance in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Units Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the authorized representative), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Units Trustee, including, without limitation, the risk of the Units Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 6.14. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office of the Units Trustee for inspection by any Holder.
Section 6.15. Confidentiality. The Units Trustee and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder or beneficial owner information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement, including the fees for services, shall remain confidential, and shall not be voluntarily disclosed to any other person, except as
may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Section 6.16 Incorporation by Reference. All of the rights, protections and immunities granted to the Units Trustee under the Indenture shall be incorporated by reference as if fully set forth herein.
[Signatures on following pages]
IN WITNESS WHEREOF, the Company, the Units Trustee, the Trustee and the Warrant Agent have duly executed this Agreement as of the day and year first above set forth.
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DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Units Trustee |
By: |
| Name: |
Title: Authorized Signatory |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee under the Indenture |
By: |
| Name: |
Title: Authorized Signatory |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Warrant Agent under the Warrant Agreement |
By: |
| Name: |
Title: Authorized Signatory |
EXHIBIT A
[INSERT IN GLOBAL UNIT CERTIFICATE FOR REGISTERED UNITS] [FACE]
[This Unit Certificate is a Global Unit Certificate within the meaning of the Unit Agreement hereinafter referred to and is registered in the name of The Depository Trust Company (the “Depositary”) or a nominee of the Depositary. Unless and until it is exchanged in whole or in part for an aggregate principal amount of Units in definitive registered form, this Unit Certificate may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
A Unit is a “Contingent Payment Debt Instrument” that has been issued with “Original Issue Discount”. A holder may obtain the issue price, amount of original issue discount, issue date, yield to maturity, comparable yield and projected payment schedule by submitting a written request for it to Diebold Nixdorf, Incorporated at c/o Diebold Nixdorf, Incorporated, 50 Executive Parkway, PO Box 2520, Hudson, Ohio 44236-1605, Attention: Corporate Secretary.
Unless this Unit Certificate is presented by an authorized representative of the Depositary (55 Water Street, New York) to Diebold Nixdorf, Incorporated or its agent for registration of transfer, exchange or payment, and any Unit issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
[Restricted Units Legend:]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT
B-3-2
FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF UNITS WITH A RULE 144A OR IAI CUSIP: [ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT][IN THE CASE OF UNITS WITH A REGULATION S CUSIP: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE UNITS TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF UNITS WITH A REGULATION S CUSIP: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS FORMING PART OF THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE OR ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES (A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.]
[Definitive Units Legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE UNITS TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE UNITS TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
UNIT CERTIFICATE FOR REGISTERED UNITS
(issuable in minimum denominations of $2,000 principal amount and integral multiples of $1.00 principal amount in excess thereof, with such amount representing the aggregate principal amount of Notes underlying the Units)
Evidencing the Ownership or Rights of the Holder Under the Securities Specified Below
8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (“Notes”) Warrants to purchase common shares, $1.25 par value per share, of Diebold
Nixdorf, Incorporated (“Warrants”)
CUSIP No.
Certificate No.:
Aggregate principal amount of Units: See Schedule A1
This Unit Certificate certifies that (the “Holder”), or registered assigns, is the registered owner of $[ in principal amount of Units]2 [the principal amount of Units specified in Schedule A hereto].3
Each Unit represents ownership by the Holder of Notes and Warrants constituting the Unit, subject to the Unit Agreement (the “Unit Agreement”) dated as of December [29], 2022 between Diebold Nixdorf, Incorporated and U.S. Bank Trust Company, National Association, as Units Trustee, as Trustee under the Indenture referred to therein, and as Warrant Agent under the Warrant Agreement referred to therein.
1 Insert in registered Global Unit Certificates.
2 Insert in Definitive Registered Units
3 Insert in registered Global Unit Certificates.
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.
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DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Units referred to in the within-mentioned Unit Agreement:
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Units Trustee |
By: |
Authorized Signatory |
Dated:
[INSERT APPROPRIATE NOTE OR WARRANT CERTIFICATES, AS APPLICABLE]
| | | | | | | | | | | | | | |
| Reference is hereby made to the further provisions of this certificate set forth on the succeeding pages hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. |
|
|
SCHEDULE A
[INSERT IN GLOBAL
UNIT CERTIFICATE FOR REGISTERED UNITS SCHEDULE OF INCREASES/REDUCTIONS]
The initial aggregate principal amount of Units represented by this Global Unit Certificate is $ . In accordance with the Unit Agreement pursuant to which this Global Unit Certificate has been issued, the following increases and reductions of the aggregate principal amount of Units represented by this Global Unit Certificate have occurred:
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Date of Increase/Reduction | Principal Amount as Increased/Reduced on Account of PIK Interest, Separation or Cancellation | Aggregate principal amount of Units Outstanding Following any such Increase/Reduction |
Notation Made by or on Behalf of Units Trustee |
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[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the principal amount of Units represented by this Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Unit Certificate on the books of the Corporation. The agent may substitute another to act for him or her.
Date:
Signature(s):
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15
ANNEX 1
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED UNITS
This certificate relates to principal amount of Units held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned has requested the Units Trustee by written order to exchange or register the transfer of a Unit or Units.
In connection with any transfer of any of the Units evidenced by this certificate prior to the Resale Restriction Termination Date, the undersigned confirms that such Units are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)to the Company or subsidiary thereof; or
(2)pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or
(3)to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
(4)pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act; or
(5)to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Units Trustee a signed letter containing certain representations and agreements; or
(6)pursuant to Rule 144 under the Securities Act; or
(7)pursuant to another available exemption from registration under the Securities Act.
Unless one of the boxes is checked, the Units Trustee will refuse to register any of the Units evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (4), (5), (6) or (7) is checked, the Company or the Units Trustee may require, prior to registering any such transfer of the Units, such legal opinions, certifications and other
information as the Company or the Units Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
| | |
| ___________________________________ |
Your Signature |
| Date: |
| ___________________________________ |
Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Unit for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
NOTICE: To be executed by
an executive officer
Name: Title:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Units Trustee).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL UNIT TO AN UNRESTRICTED GLOBAL UNIT, PURSUANT TO SECTION 2.08(d)(vii) OF THE UNIT AGREEMENT4 The undersigned represents and warrants that either:
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Units pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Unit does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Unit.
4 Include only for Regulation S Global Units.
ANNEX 2
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal amount of Units of Diebold Nixdorf, Incorporated (the “Company”).
Upon transfer, the Units would be registered in the name of the new beneficial owner as follows:
Name: Address: Taxpayer ID Number:
The undersigned represents and warrants to you that:
1.We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor”, and we are acquiring the Units, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Units, and we invest in or purchase securities similar to the Units in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2.We understand that the Units have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Units to offer, sell or otherwise transfer such Units prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Units (or any predecessor thereto)
(the “Resale Restriction Termination Date”) only in accordance with the Restricted Units Legend (as such term is defined in the unit agreement under which the Units were issued) on the Units and any applicable securities laws of any state of the United States. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Units is proposed to be made prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Units Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Units for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Units Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Units with respect to applicable transfers described in the Restricted Units Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company and the Units Trustee.
TRANSFEREE: ,
by:
EXHIBIT B
TERMINATION EVENT NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Termination Events. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of a (i) Permitted Equity Issuance Prepayment (as defined in the Indenture), or (ii) refinancing (as defined in the Indenture) in connection with a Change of Control (as defined in the Indenture), in each case prior to April 1, 2024, with respect
to $[ ] aggregate principal amount of Notes, expected to occur on or about [ ], 20[ ].
IN WITNESS WHEREOF, the undersigned has executed this Termination Event Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT C-1
PROHIBITED EVENT UNIT SPLIT DATE NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Prohibited Events. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of a repayment, repurchase, redemption or other retiring of any portion of the principal amount of Notes forming a part of the Units prior to the Unit Split Date for such Unit or portion thereof (other than in connection with a Termination Event) that would constitute one or more Prohibited Events under the Unit Agreement, in each case prior to April 1, 2024, with respect to $[ ] aggregate principal amount of Notes, expected to occur on or about [ ], 20[ ].
IN WITNESS WHEREOF, the undersigned has executed this Prohibited Event Split Date Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT C-2
INDENTURE DEFAULT NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee and Paying Agent under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Events of Default. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of an Event of Default under the Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Termination Event Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT E
COMPANY NOTIFICATION OF PIK INTEREST ELECTION
[Date]
This notification is delivered to you, [ ], as Trustee under the indenture dated December 29, 2022, among Diebold Nixdorf, Incorporated (the “Company”), the guarantors party thereto, and the Trustee (as amended, supplemented, or otherwise modified from time to time, the “Indenture”), in connection with the Company’s option to elect to pay PIK Interest as set forth in Section 2.01 of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Company (the “Officer”) hereby certifies that the undersigned is authorized to execute this notification on behalf of the Company (and not in a personal capacity) and does hereby notify the Trustee and the Paying Agent, in the name and on behalf of the Company (and not in his personal capacity), that for the Interest Payment Date of [ ], 20[25 / 26], the Company shall pay the interest on the Notes that will be due and payable on such Interest Payment Date by way of a PIK Payment.
IN WITNESS WHEREOF, the undersigned have executed this Officer’s Certificate as of the date first written above
By: Name:
Title:
EXHIBIT F
COMPANY NOTIFICATION AND DIRECTION TO TRUSTEE UNDER SECTION 2.01 OF THE INDENTURE REGARDING THE PAYMENT OF PIK INTEREST
[Date]
This notification is delivered to you, [ ], as Trustee under the indenture dated December 29, 2022, among Diebold Nixdorf, Incorporated (the “Company”), the guarantors party thereto, and the Trustee (as amended, supplemented, or otherwise modified from time to time, the “Indenture”), in connection with the Company’s option to elect to pay PIK Interest as set forth in Section 2.01 of the Indenture. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Company (the “Officer”) hereby certifies that the undersigned is authorized to execute this notification on behalf of the Company (and not in a personal capacity) and does hereby notify the Trustee and the Paying Agent, in the name and on behalf of the Company (and not in his personal capacity), that for the Interest Payment Date of [ ], 20[25 / 26], the Company is obligated to pay interest on the Notes in the aggregate amount of $[ ] and the Company shall pay such amount in PIK Interest.
The Officer hereby authorizes and directs the Trustee to increase the principal amount of the Global Notes and/or to authenticate new Definitive Notes in respect of the PIK Interest to be paid on such Interest Payment Date in accordance with Section 2.01 of the Indenture.
IN WITNESS WHEREOF, the undersigned have executed this Officer’s Certificate as of the date first written above
By: Name:
Title:
EXHIBIT G
TERMINATION EVENT NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Termination Events. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of a (i) Permitted Equity Issuance Prepayment (as defined in the Indenture), or (ii) refinancing (as defined in the Indenture) in connection with a Change of Control (as defined in the Indenture), in each case prior to April 1, 2024, with respect to $[ ] aggregate principal amount of Notes, expected to occur on or about [ ], 20[ ].
IN WITNESS WHEREOF, the undersigned has executed this Termination Event Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT H
PROHIBITED EVENT UNIT SPLIT DATE NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Prohibited Events.
Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of a repayment, repurchase, redemption or other retiring of any portion of the principal amount of Notes forming a part of the Units prior to the Unit Split Date for such Unit or portion thereof (other than in connection with a Termination Event) that would constitute one or more Prohibited Events under the Unit Agreement, in each case prior to April 1, 2024, with respect to
$[ ] aggregate principal amount of Notes, expected to occur on or about [ ], 20[ ].
IN WITNESS WHEREOF, the undersigned has executed this Prohibited Event Split Date Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT I
INDENTURE DEFAULT NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee and Paying Agent under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Events of Default. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of an Event of Default under the Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Termination Event Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
Exhibit 4.2
FIFTH SUPPLEMENTAL INDENTURE
Fifth Supplemental Indenture (this “Fifth Supplemental Indenture”), dated as of December 29, 2022, by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), each Guarantor (as defined in the Indenture referred to below) listed on the signature pages hereto (all of which are subsidiaries of the Company), and U.S. Bank Trust Company, National Association, as trustee under the Indenture referred to below (in such capacity, the “Trustee”).
WITNESSETH
WHEREAS, each of the Company and the Guarantors has heretofore executed and delivered to the Trustee an indenture (as supplemented or amended to the date hereof, the “Indenture”), dated as of April 19, 2016, providing for the issuance of an unlimited aggregate principal amount of 8.50% Senior Notes due 2024 (the “2024 Notes”);
WHEREAS, the Company and the Holders desire to amend certain provisions of the Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company, the Guarantors and the Trustee may amend or supplement the Indenture with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding (collectively, the “Requisite Consents”);
WHEREAS, on October 20, 2022, the Company, certain of its subsidiaries and certain holders of the Company’s existing indebtedness (the “Initial Consenting Holders”) entered into a Transaction Support Agreement, which was amended on November 28, 2022 by Amendment No. 1 thereto and on December 20, 2022 by Amendment No. 2 thereto (together with all exhibits, annexes and schedules thereto, as so amended, the “Transaction Support Agreement”). Following the execution of the Transaction Support Agreement, additional eligible holders of the Company’s existing indebtedness (together with the Initial Consenting Holders, the “Consenting Holders”) executed joinder agreements to become party to the Transaction Support Agreement, as permitted by its terms. Pursuant to the Transaction Support Agreement, the Consenting Holders holding 2024 Notes have agreed, among other things, to tender all of their 2024 Notes and deliver consents with respect to all of their 2024 Notes in the Exchange Offer and the Consent Solicitation (each as defined below);
WHEREAS, on November 28, 2022, the Company distributed an Offering Memorandum and Consent Solicitation Statement (the “Offering Memorandum and Consent Solicitation Statement”) to certain Eligible Holders (as defined therein) to participate in (i) the offer to exchange (the “Exchange Offer”) the 2024 Notes held by such Eligible Holders for units consisting of (a) new 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 to be issued by the Company and (b) warrants to purchase common shares, par value $1.25 per share, of the Company, and (ii) the concurrent solicitation of consent from Eligible Holders to amend the Indenture as set forth in this Fifth Supplemental Indenture (the “Consent Solicitation”), subject to the terms and conditions set forth in the Indenture; and
WHEREAS, as of (or prior to) the date hereof, the Company has received and caused to be delivered to the Trustee evidence of receipt of the Requisite Consents from or on behalf of Holders to amend the Indenture as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1.Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.Certain Amendments to the Indenture.
(a)The Indenture is hereby amended by deleting the following sections and clauses of the Indenture and all references and definitions related solely thereto in their entirety, and replacing all such deleted sections, references and definitions with “[Intentionally Omitted]”:
•Section 4.03 (Taxes)
•Section 4.05 (Corporate Existence)
•Section 4.06 (Reports and Other Information)
•Section 4.07 (Compliance Certificate)
•Section 4.08 (Limitation on Restricted Payments)
•Section 4.09 (Limitation on Indebtedness)
•Section 4.10 (Limitation on Liens)
•Section 4.11 (Future Guarantors)
•Section 4.12 (Limitation on Restrictions on Distribution From Restricted Subsidiaries)
•Section 4.14 (Transactions with Affiliates)
•Section 4.17 (Effectiveness of Covenants)
•Clause (a)(4) of Section 5.01 (Merger, Consolidation or Sale of All or Substantially All Assets)
•Clauses (a)(4), (a)(5), (a)(6) and (a)(7) of Section 6.01 (Events of Default)
•Section 9.07 (Payment for Consent)
(b)Section 1.01 (Definitions) of the Indenture is hereby amended by replacing the amount of “$20.0 million” in clause (10) of the definition of “Asset Disposition” with “$2,000.00 million”.
(c)Any provision contained in the 2024 Notes that relates to the sections in the Indenture that are amended pursuant to this Section 2 shall likewise be amended so that any such provision contained in such 2024 Notes will conform to and be consistent with the Indenture, as amended by this Fifth Supplemental Indenture.
3.Effectiveness. This Fifth Supplemental Indenture will become effective immediately upon its execution and delivery by the parties hereto; provided, however, that the provisions of Section 2 hereof shall not become operative until the settlement date of the Exchange Offer (the “Amendment Operative Date”); provided, further, that the provisions of Section 2 hereof shall become immediately operative upon the Amendment Operative Date without further action by or notice to any Person.
4.Reference to and Effect on the Indenture. Except as otherwise provided in Section 3, on and after the effective date of this Fifth Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this Fifth Supplemental Indenture unless the context otherwise requires, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
5.Construction. Except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 1.03 of the Indenture shall apply to this Fifth Supplemental Indenture mutatis mutandis.
6.Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIFTH SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
7.Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIFTH SUPPLEMENTAL INDENTURE, THE INDENTURE, THE 2024 NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
8.Severability. In case any provision in this Fifth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
9.Counterparts. The parties may sign any number of copies of this Fifth Supplemental Indenture. Each signed copy shall be deemed an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this Fifth Supplemental
Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Fifth Supplemental Indenture.
10.Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
11.The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Fifth Supplemental Indenture or for or in respect of the recitals and statements contained herein, all of which recitals are made solely by the Company and the Guarantors, and the Trustee assumes no responsibility for their correctness.
12.Benefits Acknowledged. Each of the Company and the Guarantors acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this Fifth Supplemental Indenture and that the agreements made by it pursuant to this Fifth Supplemental Indenture are knowingly made in contemplation of such benefits.
13.Successors. All agreements of each of the Company, the Guarantors and the Trustee in this Fifth Supplemental Indenture shall bind its successors, except as otherwise provided in the Indenture. All agreements of the Trustee in this Fifth Supplemental Indenture shall bind its successors.
14.Ratification of Indenture; Fifth Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Fifth Supplemental Indenture shall form a part of the Indenture for all purposes, and each note issued thereunder heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Pages Follow]
| | | | | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
/s/ Jeffrey Rutherford |
| Name: Jeffrey Rutherford |
| Title: Executive Vice President and Chief Financial Officer |
| | | | | |
DIEBOLD GLOBAL FINANCE CORPORATION |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD SST HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
GRIFFIN TECHNOLOGY INCORPORATED |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Vice President and Secretary |
| | |
[Signature Page to 2024 Notes Fifth Supplemental Indenture] |
| | | | | |
DIEBOLD SELF-SERVICE SYSTEMS |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | |
[Signature Page to 2024 Notes Fifth Supplemental Indenture] |
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee
| | | | | |
| By: | /s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Vice President |
| | |
[Signature Page to 2024 Notes Fifth Supplemental Indenture] |
Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this “First Supplemental Indenture”), dated as of December 29, 2022, by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the existing Guarantors (as defined in the Indenture referred to below) party thereto, and each of the guaranteeing subsidiaries listed under Schedule I (the “Guaranteeing Subsidiaries”), all of which are subsidiaries of the Company, U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”) and notes collateral agent (in such capacity, the “Existing Notes Collateral Agent”), and GLAS Americas LLC, as replacement collateral agent under the Indenture (the “New Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Company and the Guarantors has executed and delivered to the Trustee and the Existing Notes Collateral Agent an indenture, dated as of July 20, 2020 (the “Indenture”), providing for the issuance of an unlimited aggregate principal amount of 9.375% Senior Secured Notes due 2025 (the “2025 USD Notes”);
WHEREAS, amongst others the Company, Diebold Nixdorf Dutch Holding B.V., Diebold Self-Service Solutions S.AR.L (the "Security Providers"), the Existing Notes Collateral Agent, U.S. Bank Trustees Limited and JPMorgan Chase Bank, N.A. entered into a first lien priority intercreditor agreement dated July 20, 2020 (the "First Lien Priority Intercreditor Agreement") in relation to, among others, the 2025 USD Notes;
WHEREAS, the Indenture provides that, under certain circumstances, the Guaranteeing Subsidiaries shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally Guarantee all of the Company’s Obligations under the 2025 USD Notes and the Indenture on the terms and conditions set forth herein and under the Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company, the Guarantors and the Trustee may amend or supplement the Indenture and the 2025 USD Notes with the consent of the Holders of a majority (or such higher amount as may be required) in aggregate principal amount of the then outstanding 2025 USD Notes (collectively, the “Requisite Consents”);
WHEREAS, pursuant to Section 7.08 of the Indenture, Holders of a majority in aggregate principal amount of the then outstanding 2025 USD Notes may remove the Notes Collateral Agent by so notifying the Trustee, the Notes Collateral Agent and the Company in writing; and the Company shall promptly appoint a successor Notes Collateral Agent if the Notes Collateral Agent is so removed;
WHEREAS, on October 20, 2022, the Company, certain of its subsidiaries and certain holders of the Company’s existing indebtedness (the “Initial Consenting Holders”) entered into a Transaction Support Agreement, which was amended on November 28, 2022 by Amendment No. 1 thereto and on December 20, 2022 by Amendment No. 2 thereto (together with all exhibits, annexes and schedules thereto, as so amended, the “Transaction Support Agreement”).
Following the execution of the Transaction Support Agreement, additional eligible holders of the Company’s existing indebtedness (together with the Initial Consenting Holders, the “Consenting Holders”) executed joinder agreements to become party to the Transaction Support Agreement, as permitted by its terms. Pursuant to the Transaction Support Agreement, the Consenting Holders holding 2025 USD Notes have agreed, among other things, to tender all of their 2025 USD Notes and deliver consents with respect to all of their 2025 USD Notes in the Exchange Offer and the Consent Solicitation (each as defined below);
WHEREAS, on November 28, 2022, the Company distributed an Offering Memorandum and Consent Solicitation Statement (the “Offering Memorandum and Consent Solicitation Statement”) to certain Eligible Holders (as defined therein) to participate in, among other things,
(i) the offer to exchange the 2025 USD Notes for new 9.375% Senior Secured Notes due 2025 being issued under the Indenture and with identical terms to the 2025 USD Notes (after giving effect to the amendment and restatement of the Indenture herein), except for a different first issue date, first interest payment date and first date on which interest accrues and different CUSIP and ISIN numbers, as applicable (the “New 2025 USD Notes”) (such exchange offer, the “Exchange Offer”), and (ii) the concurrent solicitation of consent from Eligible Holders to amend and restate the Indenture as set forth in this First Supplemental Indenture and replace the Notes Collateral Agent thereunder (the “Consent Solicitation”), subject to the terms and conditions set forth in the Indenture; and
WHEREAS, as of (or prior to) the date hereof, the Company has received and caused to be delivered to the Trustee evidence of receipt of the Requisite Consents from or on behalf of Holders to amend and restate the Indenture and replace the Notes Collateral Agent as set forth herein, in accordance with the Transaction Support Agreement and the Offering Memorandum and Consent Solicitation Statement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1.Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.Amended and Restated Indenture. The Indenture is hereby amended and restated as set forth in Exhibit A hereto.
3.Guarantors. Each Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 12 thereof, in each case subject to the terms and conditions set forth in the Indenture.
4.Replacement of the Notes Collateral Agent. Requisite Consents have been obtained to remove the Existing Notes Collateral Agent under the Indenture and notice thereof is hereby given to the Trustee, the Existing Notes Collateral Agent and the Company. The Company hereby appoints the New Notes Collateral Agent as the Notes Collateral Agent under the Indenture, and the New Notes Collateral Agent hereby accepts
such appointment. The Existing Notes Collateral Agent hereby authorizes the New Notes Collateral Agent and the Company to file such instruments and documents and take such actions which may be necessary in order to assign and perfect the security interest granted in favor of the Existing Notes Collateral Agent under the Collateral Documents to and in favor of the New Notes Collateral Agent. The Existing Notes Collateral Agent hereby transfers and assigns the Additional First Lien Priority Parallel Debt Obligations (as defined in the First Lien Priority Intercreditor Agreement) to the New Notes Collateral Agent.
5.Transfer of Dutch First Lien Priority Security Documents. The Existing Notes Collateral Agent hereby transfers the contractual relationship and all rights and obligations under each First Lien Priority Security Document (as defined in the First Lien Priority Intercreditor Agreement) governed by Dutch law, including but not limited to ancillary rights and any rights attached thereto in accordance with the provisions of the Indenture, the First Lien Priority Intercreditor Agreement and the relevant Dutch First Lien Priority Security Agreement, to the New Notes Collateral Agent by way of transfer of contract (contractsoverneming) and the New Notes Collateral Agent hereby accepts the transfer of contract. Each of the Security Providers hereby accepts and acknowledges, and to the extent necessary provides its cooperation (medewerking) to such transfer of contractual relationship and rights and obligations.
6.Appointment of the New Notes Collateral Agent. Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder),
(i) pursuant to Article 2414-bis, third paragraph, of the Italian Civil Code, to the extent applicable, shall be deemed to have agreed and acknowledged the appointment of GLAS Americas LLC as the New Notes Collateral Agent and accepts and is bound by the appointment of the New Notes Collateral Agent, to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil Code, to the extent applicable, and, in any event, as mandatario con rappresentanza also pursuant to articles 1704 and 1723, second paragraph of the Italian Civil Code, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, and (ii) consented and agreed to the terms of any collateral document (including, without limitation, the provisions providing for foreclosure and release of any collateral and authorising the New Notes Collateral Agent to enter into any collateral document on its behalf) as the same may be in effect or may be amended from time to time in accordance with its terms and authorises and directs the New Notes Collateral Agent to enter into any collateral document and to perform its obligations and exercise its rights thereunder in accordance therewith.
7.Release of Liens. Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder) and the New Notes Collateral Agent, on behalf of itself and the other Secured Parties, without recourse or warranty, express or implied by the New Notes Collateral Agent, hereby agrees that, effective upon the Amendment and Restatement Operative Date (as defined below), all Liens held by the New Notes Collateral Agent on (i) that certain intercompany claim owed by Diebold Germany to the Company (the amount of which, as of the Issue Date, is approximately
€656,000,000) and (ii) that certain intercompany claim owed by Diebold Germany to the Dutch Issuer Guarantor (the amount of which, as of the Issue Date, is approximately
€343,000,000) arising under the Indenture or any Notes Document shall be terminated,
irrevocably released and of no further force or effect, automatically and without the need for any further action (provided that the New Notes Collateral Agent agrees, at the Company’s expense, to execute and deliver or otherwise file any additional documents as the Company shall reasonably request from time to time, in form and substance reasonably satisfactory to the New Notes Collateral Agent, to evidence such release).
8.Intercreditor Agreement. The New Notes Collateral Agent is hereby irrevocably authorized and directed to enter into an agreement to terminate (in part) that certain First Lien Priority Intercreditor Agreement, dated as of July 20, 2020, among, inter alios, the Company, the Dutch Issuer Guarantor, Diebold Self-Service Solutions S.A R.L, JPMorgan Chase Bank, N.A., the Trustee and U.S. Bank Trustees Limited.
9.Effectiveness. This First Supplemental Indenture will become effective immediately upon its execution and delivery by the parties hereto; provided, however, that the provisions of Sections 2 and 3 hereof shall not become operative until the settlement date of the Exchange Offer (the “Amendment and Restatement Operative Date”); provided, further, that the provisions of Sections 2 and 3 hereof shall become immediately operative upon the Amendment and Restatement Operative Date without further action by or notice to any Person.
10.Reference to and Effect on the Indenture. Except as otherwise provided in Section 5, on and after the effective date of this First Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as amended and restated by this First Supplemental Indenture unless the context otherwise requires, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
11.Construction. Except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 1.03 of the Indenture shall apply to this First Supplemental Indenture mutatis mutandis.
12.Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE, EXCEPT FOR SECTION 5 (TRANSFER AND ASSIGNMENT DUTCH FIRST LIEN PRIORITY SECURITY DOCUMENTS) WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. SECTION 5 OF THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF THE NETHERLANDS.
13.Waiver of Jury Trial. EACH OF THE COMPANY, THE GUARANTORS, THE GUARANTEEING SUBSIDIARIES, THE TRUSTEE, THE EXISTING NOTES COLLATERAL AGENT AND THE NEW NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL
INDENTURE, THE INDENTURE, THE 2025 USD NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
14.Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
15.Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be deemed an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this First Supplemental Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of this First Supplemental Indenture.
16.Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
17.The Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent. The Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals and statements contained herein, all of which recitals are made solely by the Company, the Guarantors and the Guaranteeing Subsidiaries, and the Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent assume no responsibility for their correctness. It is understood and agreed that the New Notes Collateral Agent is entering into this First Supplemental Indenture not in its individual capacity but solely in its capacity as Notes Collateral Agent under the Indenture (as amended and restated pursuant to this First Supplemental Indenture). All rights, protections, indemnities and benefits granted to the Notes Collateral Agent in the Indenture (as amended and restated pursuant to this First Supplemental Indenture) as well as any Collateral Documents (x) are hereby incorporated as applying to the New Notes Collateral Agent as if fully set forth in this First Supplemental Indenture and (y) shall apply with respect to the appointment of the New Notes Collateral Agent and the execution and delivery of any instruments and agreements, and all actions taken or omitted, by the New Notes Collateral Agent pursuant to Section 4 hereof. The Existing Notes Collateral Agent, the Company and the Guaranteeing Subsidiaries expressly agree and acknowledge that the New Notes Collateral Agent is not assuming any liability, under or related to the Supplemental Indenture, the Indenture or the Collateral Documents prior to the Amendment and Restatement Operative Date, or for any and all claims under or related to the Supplemental Indenture, the Indenture or the Collateral Documents that may have arisen or accrued prior to the Amendment and Restatement Operative Date. The New Notes Collateral Agent shall be deemed hereby to have complied with Section 7.10(a) of the Indenture.
18.Benefits Acknowledged. Each of the Company, the Guarantors and the Guaranteeing Subsidiaries acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this First Supplemental
Indenture and that the agreements made by it pursuant to this First Supplemental Indenture are knowingly made in contemplation of such benefits.
19.Successors. All agreements of each of the Company, the Guarantors, the Guaranteeing Subsidiaries, the Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent in this First Supplemental Indenture shall bind its successors, except as otherwise provided in the Indenture. All agreements of the Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent in this First Supplemental Indenture shall bind their successors.
20.Ratification of Indenture; First Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and each note issued thereunder heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Pages Follow]
| | | | | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
/s/ Jeffrey Rutherford |
| Name: Jeffrey Rutherford |
| Title: Executive Vice President and Chief Financial Officer |
| | | | | |
DIEBOLD GLOBAL FINANCE CORPORATION |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD SST HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
GRIFFIN TECHNOLOGY INCORPORATED |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Vice President and Secretary |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD SELF-SERVICE SYSTEMS |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF CANADA, LIMITED |
By: |
/s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| | | | | |
DIEBOLD CANADA HOLDING COMPANY INC. |
By: |
/s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF B.V. |
By: |
/s/ Helena Mueller |
| Name: Helena Mueller |
| Title: Managing Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF GLOBAL HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF SOFTWARE PARTNER B.V. |
By: |
/s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SOFTWARE C.V. |
By Diebold Nixdorf Software Partner B.V. as General Partner |
| By: | /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. |
By: |
/s/ Hendrik Schouten |
| Name: Hendrik Schouten |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF S.A.S. |
By: |
/s/ Hervé Grelet |
| Name: Hervé Grelet |
| Title: duly authorized |
| | | | | |
DIEBOLD NIXDORF HOLDING GERMANY GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
WINCOR NIXDORF INTERNATIONAL GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SYSTEMS GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF DEUTSCHLAND GMBH |
By: |
/s/ Roland Sorke |
| Name: Roland Sorke |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF LOGISTICS GMBH |
By: |
/s/ Christina Wieber |
| Name: Christina Wieber |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH |
By: |
/s/ Christina Wieber |
| Name: Christina Wieber |
| Title: Managing Director |
| | | | | |
WINCOR NIXDORF FACILITY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG |
By Diebold Nixdorf Security GmbH as General Partner |
| By: | /s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH |
By: |
/s/ Jörg Kleinschmidt |
| Name: Jörg Kleinschmidt |
| Title: Managing Director |
| | | | | |
IP MANAGEMENT GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SECURITY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF OPERATIONS GMBH |
By: |
/s/ Michael Schütt |
| Name: Michael Schütt |
| Title: Managing Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF FINANCE GERMANY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | | | | |
DIEBOLD NIXDORF S.R.L. |
By: |
/s/ Jonathan Leiken |
Name: Jonathan Leiken |
Title: Authorized Signatory |
Place of Execution: | United States of America |
| | | | | |
DIEBOLD NIXDORF SP. Z.O.O. |
By: |
/s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF BPO SP. Z.O.O. |
By: |
/s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF S.L. |
By: |
/s/ D. Luis Carlos Rodríguez Argüelles |
| Name: D. Luis Carlos Rodríguez Argüelles |
| Title: Managing Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF AB |
By: |
/s/ Rene Lauxtermann |
| Name: Rene Lauxtermann |
| Title: Director |
| | | | | |
DIEBOLD NIXDORF (UK) LIMITED |
By: |
/s/ Paul George Young |
| Name: Paul George Young |
| Title: Director |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
| | | | | |
TRUSTEE & NOTES COLLATERAL AGENT: U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
| By: | /s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Vice President |
| | | | | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Notes Collateral Agent |
| By: | /s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Vice President |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
GLAS AMERICAS LLC, as New Notes Collateral Agent
| | | | | |
| By: | /s/ Jeffrey Schoenfeld |
| Name: Jeffrey Schoenfeld |
| Title: Vice President |
| | |
[Signature Page to 2025 USD Notes First Supplemental Indenture] |
SCHEDULE I
List of Guaranteeing Subsidiaries
Diebold Nixdorf Technology Finance, LLC Diebold Nixdorf Canada Limited
Diebold Canada Holding Company Inc. Diebold Nixdorf BV
Diebold Nixdorf B.V.
Diebold Nixdorf Global Holding B.V. Diebold Nixdorf Software Partner B.V. Diebold Nixdorf Software C.V. Diebold Nixdorf Global Solutions B.V.
Diebold Nixdorf Holding Germany GmbH Wincor Nixdorf International GmbH Diebold Nixdorf Systems GmbH
Diebold Nixdorf Deutschland GmbH Diebold Nixdorf Logistics GmbH Diebold Nixdorf Global Logistics GmbH Wincor Nixdorf Facility GmbH
Diebold Nixdorf Real Estate GmbH & Co. KG
Diebold Nixdorf Business Administration Center GmbH IP Management GmbH
Diebold Nixdorf Vermögensverwaltungs GmbH Diebold Nixdorf Security GmbH
Diebold Nixdorf Operations GmbH Diebold Nixdorf Finance Germany GmbH Diebold Nixdorf S.r.l.
Diebold Nixdorf sp. z o.o. Diebold Nixdorf BPO sp. z o.o. Diebold Nixdorf S.L.
Diebold Nixdorf AB
Diebold Nixdorf (UK) Limited
EXHIBIT A
Amended and Restated Indenture
[see attached]
Execution Version
AMENDED AND RESTATED SENIOR SECURED NOTES INDENTURE
Dated as of December 29, 2022 Among
DIEBOLD NIXDORF, INCORPORATED
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee and
GLAS AMERICAS LLC,
as Notes Collateral Agent
9.375% SENIOR SECURED NOTES DUE 2025
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Definitions 1
Section 1.02 Other Definitions 52
Section 1.03 Rules of Construction. 53
Section 1.04 Acts of Holders. 54
Section 1.05 Quebec Interpretive Provisions 56
Section 1.06 French Terms. 57
Section 1.07 Spanish Terms and Definitions 58
Section 1.08 Dutch Terms 59
Section 1.09 Swedish Terms. 60
ARTICLE 2 THE NOTES 61
Section 2.01 Form and Dating; Terms 61
Section 2.02 Execution and Authentication. 61
Section 2.03 Registrar and Paying Agent 62
Section 2.04 Paying Agent to Hold Money in Trust 62
Section 2.05 Holder Lists. 63
Section 2.06 Transfer and Exchange 63
Section 2.07 Replacement Notes 64
Section 2.08 Outstanding Notes 64
Section 2.09 Treasury Notes 65
Section 2.10 Temporary Notes 65
Section 2.11 Cancellation. 65
Section 2.12 Defaulted Interest. 65
Section 2.13 CUSIP and ISIN Numbers 66
Section 2.14 Italian Usury Law 66
ARTICLE 3 REDEMPTION 67
Section 3.01 Notices to Trustee. 67
Section 3.02 Selection of Notes to Be Redeemed or Purchased 67
Section 3.03 Notice of Redemption. 67
Section 3.04 Effect of Notice of Redemption. 68
Section 3.05 Deposit of Redemption or Purchase Price 69
Section 3.06 Notes Redeemed or Purchased in Part 69
Section 3.07 Optional Redemption. 69
Section 3.08 Mandatory Redemption. 70
Section 3.09 [Reserved] 70
Section 3.10 Offers to Repurchase by Application of Excess Proceeds. 70
ARTICLE 4 COVENANTS 73
Section 4.01 Payment of Notes 73
Section 4.02 Maintenance of Office or Agency 73
Section 4.03 Taxes. 73
Section 4.04 Stay, Extension and Usury Laws 73
Section 4.05 Corporate Existence 74
Section 4.06 Reports and Other Information. 74
Section 4.07 Compliance Certificate 75
Section 4.08 Limitation on Restricted Payments. 76
Section 4.09 Limitation on Indebtedness 80
Section 4.10 Limitation on Liens 84
Section 4.11 Future Guarantors 84
Section 4.12 Limitation on Restrictions on Distribution From Subsidiaries 85
Section 4.13 [Reserved] 87
Section 4.14 Transactions with Affiliates 87
Section 4.15 Offer to Repurchase Upon Change of Control 89
Section 4.16 Asset Dispositions. 92
Section 4.17 Effectiveness of Covenants 95
Section 4.18 Further Covenants. 96
Section 4.19 Additional Amounts 96
Section 4.20 Limitation on Activities of the Dutch Issuer Guarantor 98
Section 4.21 Collateral and Guarantee Requirements 99
ARTICLE 5 SUCCESSORS 100
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets. 100
ARTICLE 6 DEFAULTS AND REMEDIES 102
Section 6.01 Events of Default 102
Section 6.02 Acceleration 105
Section 6.03 Other Remedies 105
Section 6.04 Waiver of Past Defaults 105
Section 6.05 Control by Majority 106
Section 6.06 Limitation on Suits 106
Section 6.07 Rights of Holders to Receive Payment 106
Section 6.08 Collection Suit by Trustee 106
Section 6.09 Restoration of Rights and Remedies 107
Section 6.10 Rights and Remedies Cumulative 107
Section 6.11 Delay or Omission Not Waiver 107
Section 6.12 Trustee May File Proofs of Claim 107
Section 6.13 Priorities 108
Section 6.14 Undertaking for Costs 108
ARTICLE 7 TRUSTEE AND COLLATERAL AGENT 109
Section 7.01 Duties of Trustee and Notes Collateral Agent 109
Section 7.02 Rights of Trustee and Notes Collateral Agent 110
Section 7.03 Individual Rights of Trustee and Notes Collateral Agent 112
Section 7.04 Disclaimer 112
Section 7.05 Notice of Defaults. 112
Section 7.06 [Reserved] 112
Section 7.07 Compensation and Indemnity. 112
Section 7.08 Appointment of the Notes Collateral Agent. 113
Section 7.09 Replacement of Trustee or Notes Collateral Agent 115
Section 7.10 Successor by Merger, etc. 116
Section 7.11 Eligibility; Disqualification 116
Section 7.12 Collateral Documents; Intercreditor Agreements 117
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 117
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance 117
Section 8.02 Legal Defeasance and Discharge 117
Section 8.03 Covenant Defeasance 118
Section 8.04 Conditions to Legal or Covenant Defeasance 119
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions 120
Section 8.06 Repayment to the Company 120
Section 8.07 Reinstatement 120
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 121
Section 9.01 Without Consent of Holders 121
Section 9.02 With Consent of Holders 123
Section 9.03 [Reserved] 125
Section 9.04 Revocation and Effect of Consents 125
Section 9.05 Notation on or Exchange of Notes 126
Section 9.06 Trustee and Notes Collateral Agent to Sign Amendments, etc 126
Section 9.07 Payments for Consent 126
ARTICLE 10 GUARANTEES 127
Section 10.01 Guarantee. 127
Section 10.02 Limitation on Guarantor Liability 129
Section 10.03 Execution and Delivery 135
Section 10.04 Subrogation 135
Section 10.05 Benefits Acknowledged 135
Section 10.06 Release of Note Guarantees 135
Section 10.07 Spanish Law Particularities 136
ARTICLE 11 COLLATERAL AND SECURITY 137
Section 11.01 Collateral 137
Section 11.02 Maintenance of Collateral 139
Section 11.03 Impairment of Collateral 139
Section 11.04 Further Assurances 139
Section 11.05 After-Acquired Property 140
Section 11.06 Real Estate Mortgages and Filings 141
Section 11.07 Release of Liens on the Collateral 142
Section 11.08 Information Regarding Collateral 144
Section 11.09 Collateral Documents and Intercreditor Agreements 144
Section 11.10 Suits to Protect the Collateral 145
Section 11.11 Authorization of Receipt of Funds by the Trustee Under the Collateral
Documents 145
Section 11.12 Purchaser Protected 145
Section 11.13 Powers Exercisable by Receiver or Trustee 145
Section 11.14 Spanish Particularities in Relation to any Spanish Collateral Documents 146
ARTICLE 12 SATISFACTION AND DISCHARGE 147
Section 12.01 Satisfaction and Discharge 147
Section 12.02 Application of Trust Money 147
ARTICLE 13 MISCELLANEOUS 148
Section 13.01 [Reserved] 148
Section 13.02 Notices. 148
Section 13.03 [Reserved] 150
Section 13.04 Certificate and Opinion as to Conditions Precedent 150
Section 13.05 Statements Required in Certificate or Opinion 150
Section 13.06 Rules by Trustee and Agents. 150
Section 13.07 No Personal Liability of Directors, Officers, Employees, Members, Partners
and Shareholders 150
Section 13.08 Governing Law 151
Section 13.09 Consent to Jurisdiction and Service of Process; Waiver of Jury Trial 151
Section 13.10 Force Majeure. 151
Section 13.11 No Adverse Interpretation of Other Agreements 151
Section 13.12 Successors. 151
Section 13.13 Severability. 152
Section 13.14 Counterpart Originals 152
Section 13.15 Table of Contents, Headings, etc. 152
Section 13.16 PDF Delivery of Signature Pages. 152
Section 13.17 U.S.A. PATRIOT Act 152
Section 13.18 Payments Due on Non-Business Days. 152
Section 13.19 Spanish Provisions Relating to Executive Proceedings 152
Section 13.20 Parallel Debt; Parallel Debt Owed to the Notes Collateral Agent 154
Section 13.21 Judgment Currency. 155
Appendix A Provisions Relating to Notes Appendix B Agreed Security Principles Appendix C Foreign Collateral Documents Appendix D Post-Closing Matters
Exhibit A Form of Note
Exhibit B Form of Institutional Accredited Investor Transferee Letter of Representation Exhibit C Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
INDENTURE, dated as of December 29, 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Guarantors listed on the signature pages hereto and U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “Trustee”) and GLAS Americas LLC, as notes collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, on July 20, 2020, the Company, certain Subsidiaries of the Company (as guarantors), the Trustee and U.S. Bank Trust Company, National Association, as notes collateral agent, entered into an indenture (as amended or supplemented, the “Original Indenture,” and, as amended, supplemented, restated or amended and restated to the date hereof, the “Indenture”) to establish the form and terms, and to provide for the issuance, of $700,000,000 in aggregate principal amount of 9.375% Senior Secured Notes due 2025 (the “Existing Notes”);
WHEREAS, pursuant to the terms of the Original Indenture, the Original Indenture and the Existing Notes are amended and restated as set forth by the terms hereof;
WHEREAS, the Company has duly authorized the creation of and issue of $718,137,000 aggregate principal amount of Additional Notes pursuant to, and as defined in, the Original Indenture (which Additional Notes are herein referred to as the “Exchange Notes”) to holders of Existing Notes participating in the offer to exchange, among others, Existing Notes for Exchange Notes pursuant to the terms and conditions set forth in the Offering Memorandum (as defined below); and
WHEREAS, the Guarantors have duly authorized the execution and delivery of this
Indenture;
NOW, THEREFORE, the Company, the Guarantors, the Trustee and the Notes Collateral
Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“2023 Credit Facility” means that certain credit agreement, dated as of November 23, 2015, among the Company, the guarantors parties thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“2023 Credit Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the 2023 Credit Facility, or any successor representative acting in such capacity.
“2023 Credit Facility Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the collateral agent under the 2023 Credit Facility, or any successor representative acting in such capacity.
“2024 Notes” means the Company’s 8.5% Senior Notes due 2024 issued pursuant to the 2024 Notes Indenture.
“2024 Notes Indenture” means that certain indenture, dated as of April 19, 2016, among the Company, as issuer, the subsidiary guarantors party thereto from time to time, and the 2024 Trustee, as amended or supplemented from time to time, relating to the Company’s 8.5% Senior Notes due 2024.
“2024 Trustee” means U.S. Bank Trust Company, National Association.
“2025 Credit Facility” means that certain credit agreement, dated as of the Issue Date, among the Company, the guarantors parties thereto, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“2025 Credit Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the 2025 Credit Facility, or any successor representative acting in such capacity.
“2025 Credit Facility Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Credit Facility, or any successor representative acting in such capacity.
“2025 Credit Facility Obligations” means the “Obligations” as defined in the 2025 Credit
Facility.
“2025 Euro Notes” means the Dutch Issuer Guarantor’s 9.000% Senior Secured Notes
due 2025 issued pursuant to the 2025 Euro Notes Indenture.
“2025 Euro Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Euro Notes Indenture, or any successor representative acting in such capacity.
“2025 Euro Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Dutch Issuer Guarantor, as issuer, the Company, as guarantor, the subsidiary guarantors from time to time party thereto, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, the 2025 Euro Notes Trustee and the 2025 Euro Notes Collateral Agent, as amended, amended and restated, or supplemented from time to time, relating to the Dutch Issuer Guarantor’s 9.000% Notes due 2025.
“2025 Euro Notes Trustee” means U.S. Bank Trust Company, National Association until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 Euro Notes Indenture and thereafter means the successor serving thereunder.
“2025 Notes” means the Notes and the 2025 Euro Notes.
“2025 Notes Collateral Agents” means the Notes Collateral Agent and the 2025 Euro Notes Collateral Agent.
“2025 Notes Indentures” means this Indenture and the 2025 Euro Notes Indenture. “2025 Notes Trustees” means the Trustee and the 2025 Euro Notes Trustee.
“ABL Agreement” means the collective reference to (a) the ABL Facility, (b) any Additional ABL Agreement and (c) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been Incurred to extend, replace, refinance or
refund in whole or in part the Indebtedness and other obligations outstanding under the ABL Facility (regardless of whether such replacement, refunding or refinancing is a “working capital” facility, asset- based facility or otherwise), any Additional ABL Agreement or any other agreement or instrument referred to in this clause (c) unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Agreement hereunder (a “Replacement ABL Agreement”). Any reference to the ABL Agreement hereunder shall be deemed a reference to any ABL Agreement then extant.
“ABL Collateral Agent” means (a) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party other than an ABL Loan Party incorporated under the laws of a Specified Jurisdiction (other than Canada), JPMorgan Chase Bank, N.A. (together with its successors and assigns), as collateral agent for the ABL Secured Parties, (b) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party incorporated under the laws of a Specified Jurisdiction (other than Canada), GLAS Americas LLC (together with its successors and assigns) as collateral agent for the ABL Secured Parties and (c) in the case of any Replacement ABL Agreement or any other ABL Agreement, the Person identified as such in such agreement.
“ABL Creditors” means collectively, the “Lenders” and the “Secured Parties,” each as defined in the ABL Agreement or any Persons that are designated under the ABL Agreement as the “ABL Creditors” for purposes of the ABL Intercreditor Agreement.
“ABL Documents” means, collectively, the ABL Facility, the ABL Intercreditor Agreement and the indenture, credit agreement or other agreement governing other ABL Indebtedness and ABL Security Documents related to the foregoing.
“ABL Facility” means that credit agreement with respect to an asset-based revolving credit facility, to be dated on or around the Issue Date, among the Company, certain of its Subsidiaries, the ABL Facility Administrative Agent, the ABL Collateral Agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder), and including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified or refinanced from time to time, and (if designated by the Company) as replaced (whether or not upon termination, and whether with the original lenders or otherwise), amended, restated, modified or refinanced from time to time, including (if designated by the Company) by any agreement or indenture or commercial paper facility with banks or other institutional lenders or investors extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures increasing the amount loaned or issued thereunder expressly permitted by Section 4.09 or adding Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“ABL Facility Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as the administrative agent under the ABL Facility, or any successor representative acting in such capacity.
“ABL Indebtedness” means (a) Indebtedness (including letters of credit and reimbursement obligations with respect thereto) and other obligations Incurred by the ABL Loan Parties under or in respect of the ABL Facility and/or (b) Guarantees by any Subsidiary in respect of any of the obligations described in the foregoing clause (a).
“ABL Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the ABL Collateral Agent, the Superpriority Credit Facility Collateral
Agent, the 2023 Credit Facility Collateral Agent, the 2025 Credit Facility Collateral Agent, the 2025 Notes Collateral Agents, the New 2L Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“ABL Loan Parties” means, collectively, the borrowers and guarantors from time to time party to the ABL Documents.
“ABL Non-Priority Collateral” means all Collateral that is not ABL Priority Collateral. “ABL Obligations” means (a) all principal of and interest (including, without limitation
any post-petition interest) and premium (if any) on all loans made pursuant to the ABL Agreement or any
ABL DIP Financing (as defined in the ABL Intercreditor Agreement) by the ABL Creditors, (b) all reimbursement obligations (if any) and interest thereon (including without limitation any post-petition interest) with respect to any letter of credit or similar instruments issued pursuant to the ABL Agreement,
(c) all Swap Obligations (as defined in the ABL Intercreditor Agreement), (d) all Banking Services Obligations (as defined in the ABL Intercreditor Agreement) and (e) all guarantee obligations, indemnities, fees, expenses (including, without limitation, all fees and disbursements of counsel to the ABL Representatives (as defined in the ABL Intercreditor Agreement) or any ABL Creditors) and other amounts payable from time to time pursuant to the ABL Documents, in each case whether or not allowed or allowable in an insolvency proceeding. To the extent any payment with respect to any ABL Obligation (whether by or on behalf of any ABL Loan Party, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Notes Secured Party (as defined in the ABL Agreement), receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Indenture and the rights and obligations of the ABL Secured Parties and the Notes Secured Parties (as defined in the ABL Agreement), be deemed to be reinstated and outstanding as if such payment had not occurred.
“ABL Priority Collateral” means, collectively the ABL Priority Domestic Collateral and the ABL Priority Foreign Collateral.
“ABL Priority Domestic Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which constitutes “ABL Priority Collateral” under the ABL Facility; provided, that any ABL Priority Domestic Collateral that is for any reason after the Issue Date no longer “Collateral” under the ABL Facility shall be deemed as of such date to be Non-ABL Domestic Released Collateral.
“ABL Priority Foreign Collateral” means that portion of the Collateral that is held by a Foreign Subsidiary of the Company and which constitutes “ABL Priority Collateral” under the ABL Facility; provided, that any ABL Priority Foreign Collateral that is for any reason after the Issue Date no longer “Collateral” under the ABL Facility shall be deemed as of such date to be Non-ABL Foreign Collateral.
“ABL Priority Secured Indebtedness” means (a) ABL Indebtedness secured pursuant to the ABL Security Documents by Liens on the ABL Priority Collateral, which Liens are senior in priority to the Liens on the ABL Priority Collateral securing the Non-ABL Secured Indebtedness pursuant to the terms of the ABL Intercreditor Agreement or other intercreditor agreement that is substantially similar to such intercreditor agreement (regardless of any priority level among such Non-ABL Secured Indebtedness).
“ABL Secured Parties” means the ABL Collateral Agent, the ABL Facility Administrative Agent, the ABL Creditors and any other holders of the ABL Obligations.
“ABL Security Documents” means all security agreements, pledge agreements, control agreements, collateral assignments, Mortgages, deeds of trust, security deeds, deeds to secure debt, hypothecs, collateral agency agreements, debentures or other instruments, pledges, grants or transfers for security or agreements related thereto executed and delivered by the Company, any or any Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon Collateral (including, without limitation, financing statements under the Uniform Commercial Code or the PPSA, as applicable) in favor of the ABL Collateral Agent, for the benefit of any of the holders of ABL Indebtedness, in each case, as amended, modified, restated, supplemented or replaced, in whole or in part, from time to time, in accordance with its terms and the applicable ABL Documents subject to the terms of the ABL Intercreditor Agreement, as applicable.
“Acquired Indebtedness” means, with respect to any specified Person, (1) Indebtedness of any Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary, (2) Indebtedness assumed in connection with the acquisition of assets from such Person, or (3) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person, in each case whether or not Incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Subsidiary and, with respect to clauses (2) and (3) of the preceding sentence, on the date of consummation of such acquisition of assets.
“Additional ABL Agreement” means any agreement evidencing or governing the Incurrence of additional Indebtedness that is permitted to be secured by the Collateral securing any ABL Indebtedness on a pari passu basis with other ABL Indebtedness and treated as an ABL Agreement pursuant to the ABL Agreement and any agreement approved for designation as such by each ABL Collateral Agent and each Non-ABL Representative.
“Additional Notes” has the meaning given to such term in the Original Indenture. “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) when used with respect to any Person means possession, directly or indirectly, of the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“After-Acquired Property” means property (other than Excluded Property) that is intended to be Collateral acquired by the Company or a Guarantor (including property of a Person that becomes a new Guarantor after the Issue Date) that is not automatically subject to a perfected security interest under the Collateral Documents.
“Agent” means any Registrar or Paying Agent.
“Agreed Security Principles” has the meaning set forth in Appendix B.
“Asset Disposition” means any direct or indirect sale, lease (other than an operating lease entered into in the ordinary course of business), transfer, issuance or other disposition, or a series of related sales, leases (other than operating leases entered into in the ordinary course of business), transfers,
issuances or dispositions that are part of a common plan, of shares of Capital Stock of a Subsidiary (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Subsidiaries, including any disposition by means of a merger, amalgamation, consolidation or similar transaction.
Notwithstanding the preceding, the following items shall not be deemed to be Asset
Dispositions:
(1)dispositions of assets, including by means of a merger, amalgamation, consolidation or similar transaction, by (a) a Guarantor to the Company or by the Company or a Guarantor to a Guarantor or (b) a Guarantor or the Company to a Non-Guarantor Subsidiary, provided that all such dispositions under clause (b) of this paragraph (excluding dispositions which are Permitted Investments or permitted pursuant to Section 4.08) (i) in the aggregate do not exceed $25.0 million (with the Fair Market Value of each such disposition being measured at the time made and without giving effect to subsequent changes in value) and (ii) are for cash consideration only; (2)the sale or other disposition of cash or Cash Equivalents in the ordinary course of business or in connection with cash management activities;
(3)a disposition of inventory or equipment in the ordinary course of business;
(4)dispositions of obsolete, damaged, worn out or surplus assets, in each in the ordinary course of business;
(5)the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture; (6)an issuance of Capital Stock by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(7)for purposes of Section 4.16 only, the making of a Permitted Investment (other than a Permitted Investment to the extent such transaction results in the receipt of cash or Cash Equivalents by the Company or its Subsidiaries (but excluding any securities, notes or other obligations that are subsequently converted into cash)) or a disposition that is permitted pursuant to Section 4.08; (8)[reserved];
(9)[reserved];
(10)dispositions of assets in any single transaction or series of related transactions with an aggregate Fair Market Value equal to or less than $5.0 million, provided that in any fiscal year, the aggregate sum of dispositions under this clause (10) shall not exceed $15.0 million;
(11)the creation of a Permitted Lien and dispositions in connection with Permitted Liens;
(12)discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof and sales of accounts receivable in the ordinary course of business and at the request of
the account debtor thereon to facilitate the processing and payment thereof, in each case exclusive of factoring or similar arrangements;
(13)the issuance by a Subsidiary of Disqualified Stock or Preferred Stock that is permitted by Section 4.09; (14)(i) the licensing or sublicensing of intellectual property or other general intangibles and licenses, leases or subleases of other property, in each case, in the ordinary course of business and (ii) the abandonment or allowance to lapse of intellectual property which, in the case of this clause (ii), in the good faith determination of the Company is not material to the Company and its Subsidiaries, taken as a whole;
(15)foreclosure on assets;
(16)dispositions resulting from (i) any taking, expropriation or condemnation of any property of the Company or any Subsidiary by any governmental authority or (ii) any casualty;
(17)[reserved];
(18)sales and exchanges of assets in connection with the concurrent purchase of assets useful in a Similar Business to the extent that (i) the assets received by the Company or its Subsidiaries are of equivalent or greater Fair Market Value than the assets transferred and, (ii) if a Subsidiary transfers any such assets without receiving assets in exchange as set forth in clause (i), such Subsidiary must receive cash consideration equal to or greater than the Fair Market Value of the transferred assets;
(19)[reserved];
(20)any surrender or waiver of contract rights or the settlement, release or surrender of any contract, tort or other litigation claims;
(21)dispositions of machinery, equipment or other fixed assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 180 days, (ii) such assets are exchanged within 180 days for machinery, equipment or other fixed assets having a Fair Market Value equal to or greater than the assets being traded in or (iii) the proceeds of such disposition are applied to the purchase price of replacement assets within 180 days;
(22)the unwinding of any Hedging Obligations;
(23)dispositions of Common Stock of the Company held by any Subsidiary in connection with any acquisition made by the Company or any Subsidiary;
(24)dispositions in connection with the China JV Restructuring;
(25)sales and/or transfers of joint venture equity interests and assets pursuant to the terms of the China Joint Venture; and
(26)sales and/or transfers of joint venture equity interests and assets pursuant to the terms of the Wincor Joint Venture.
“Authorized Representative” means in the case of (i) the Superpriority Credit Facility or the holders of Obligations thereunder, the Superpriority Credit Facility Administrative Agent, (ii) the ABL Facility or the holders of Obligations thereunder, the ABL Facility Administrative Agent, (iii) the
2025 Credit Facility or the holders of Obligations thereunder, the 2025 Credit Facility Administrative Agent, (iv) the 2023 Credit Facility or the holders of Obligations thereunder, the 2023 Credit Facility Administrative Agent, (v) the Notes or the Holders thereof, the Trustee, (vi) the 2025 Euro Notes or the holders thereof, the 2025 Euro Notes Trustee, and (vii) of the New 2L Notes or the holders thereof, the New 2L Notes Trustee and (viii) in the case of any series of additional Secured Indebtedness or the holders thereof that become subject to any Intercreditor Agreement, the Authorized Representative named for such series in the applicable joinder agreement.
“Average Life” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing:
(1)the sum of the products obtained by multiplying (a) the amount of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock by (b) the number of years (calculated to the nearest one- twelfth) from the date of determination to the date of such payment; by
(2)the sum of the amounts of all such payments.
“Bankruptcy Laws” shall mean, as applicable, (a) the Bankruptcy Code and (b) and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement involving a compromise of claims of any class of its creditors), the UK Insolvency Act 1986, the German Insolvency Code (Insolvenzordnung), the Italian Bankruptcy Law or Italian Crisis and Insolvency Code, the Dutch Bankruptcy Act (Faillissementswet), Book XX of the Belgian Economic Law Code (Wetboek Economisch Recht/Code de droit économique), the Spanish Insolvency Law, the Swedish Reorganisation Act (Sw. lag (2022:964) om företagsrekonstruktion), the Swedish Bankruptcy Act (Sw. Konkurslag (1987:672)), the Polish Insolvency Law dated 28 February 2003 (Prawo upadłościowe), the Polish Restructuring Law dated 15 May 2015 (Prawo restrukturyzacyjne) ), the Council of the European Union Regulation 2015/848 on insolvency proceedings, the provisions of Book VI (Livre Sixième) of the French Commercial Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, restructuring, reorganization, administration, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect (including any applicable corporations or companies legislation to the extent the relief sought under such legislation relates to or involves the compromise, settlement, adjustment, restructuring or arrangement of debt).
“Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations of 23 March 2019, as amended from time to time.
“Belgian Collateral Agreements” means the collateral agreements governed by Belgian law set forth on Appendix C hereof.
“Belgian Collateral Documents” means the Belgian Collateral Agreements and each security agreement or other instrument or document, as applicable, governed by Belgian law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Belgian Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Belgian Guarantor” means a Guarantor organized or incorporated under the laws of Belgium.
“beneficial ownership” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, and “beneficial owner” has a corresponding meaning.
“Bi-lateral LC/WC Agreement” means an agreement between the Company and/or any of its Subsidiaries and a financial institution providing for foreign and/or domestic revolving credit facilities and/or the issuance of letters of credit, bank guarantees and/or similar obligations, which agreement has been designated in writing as a Bi-lateral LC/WC Agreement pursuant to an Officer’s Certificate delivered to the Trustee setting forth the maximum principal amount available or permitted to be Incurred under such agreement. The Company may rescind such designation or decrease or increase the maximum principal amount available or permitted to be Incurred under any such agreement pursuant to an Officer’s Certificate delivered to the Trustee. Liens on the collateral in respect of any credit facility securing obligations in respect of any Bi-lateral LC/WC Agreements shall be required to be secured pursuant to clauses (34) and/or (35) of the definition of “Permitted Liens.”
“Board of Directors” means:
(1)with respect to a corporation, the Board of Directors of the corporation or (other than for purposes of determining Change of Control) any duly authorized committee of the Board of Directors;
(2)with respect to a partnership, the Board of Directors of the general partner of the partnership; and
(3)with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or North Canton, Ohio are authorized or required by law to close.
“Canadian Collateral Agreement” means, collectively, the Canadian security agreement among the Note Parties party thereto and the Notes Collateral Agent, in form and substance reasonably satisfactory to the Notes Collateral Agent, and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Canadian law in connection with this Indenture and the Canadian Collateral and Guarantee Requirement to secure any of the Obligations.
“Canadian Collateral and Guarantee Requirement” means, at any time and solely with respect to each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Trustee and the Notes Collateral Agent shall have received from (i) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the applicable supplemental indenture hereto duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplemental indenture hereto duly executed and delivered on behalf of such Person, (ii) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each duly executed and delivered on behalf of such
Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Foreign Note Documents executed and delivered after the Issue Date, documents and, to the extent reasonably requested by the Trustee or the Notes Collateral Agent;
(b)all outstanding Capital Stock of any Subsidiary of the Company (other than any Capital Stock constituting Excluded Property) owned by or on behalf of any Canadian Note Party shall have been pledged pursuant to the Canadian Collateral Agreement and the Notes Collateral Agent shall have received certificates or other instruments representing all such Capital Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Canadian Note Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Canadian Collateral Agreement and the Notes Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including PPSA financing statements, Control Agreements and intellectual property security agreements, required by the Canadian Collateral Agreement or Requirements of Law and reasonably requested by the Trustee, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Canadian Collateral Agreement and perfect such Liens to the extent required by, and with the priority required by, the Canadian Collateral Agreement and the other provisions of the term “Canadian Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Trustee in proper form for filing, registration or recording;
(e)the Notes Collateral Agent shall have received as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Notes Collateral Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Notes Collateral Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Notes Collateral Agent, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 4.10, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Trustee may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Notes Collateral Agent of payment by the Company or any other Subsidiary of all title policy premiums, search
and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer) and (vi) such legal opinions as the Trustee or Notes Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Canadian Note Party on the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree), (ii) with respect to any Required Account established by a Canadian Note Party after the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Trustee shall reasonably agree), and
(iii) with respect to any Required Account acquired by a Canadian Note Party after the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Trustee shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Trustee. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account maintained by a Canadian Note Party so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement, (ii) the Lien thereon securing the obligations under the Superpriority Credit Facility is subject to the Intercreditor Agreements or (iii) the Lien thereon securing the obligations under the 2025 Credit Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Canadian Note Parties, or the provision of Guarantees by any Canadian Subsidiary (i) if, and for so long as and to the extent that the Trustee and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other taxes)), outweighs the benefits to be obtained by the Holders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the PPSA or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral of the Canadian Note Parties shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the PPSA or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Canadian
Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Canadian Collateral Agreement, (c) except with respect to any Required Accounts, in no event shall Control Agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of PPSA financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 other than the filing of PPSA financing statements and, other than the filing of PPSA financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. or Canadian jurisdiction or required by the laws of any non-U.S. or Canadian jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States or Canada (including any Capital Stock of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets, (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of PPSA financing statements), (h) no Note Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Property. The Trustee may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Issue Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Indenture or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Collateral Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Credit Facility, 2025 Credit Facility, 2023 Credit Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Canadian Note Party” means any Note Party incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof.
“Canadian Subsidiary” means each Subsidiary incorporated, formed or organized, under the laws of Canada or a province or territory thereof.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible or exchangeable into such equity.
“Capitalized Lease Obligations” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“Cash Equivalents” means:
(1)U.S. dollars, Canadian dollars, Swiss Francs, Pounds Sterling, Japanese Yen, Euros or any national currency of any participating member state of the EMU or, in the case of a Foreign Subsidiary, such other local currencies held by it from time to time in the ordinary course of business;
(2)securities issued or directly and fully Guaranteed or insured by the U.S. government or any agency or instrumentality of the United States (provided that the full faith and credit of the United States is pledged in support thereof);
(3)marketable general obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof or issued by any foreign government or any political subdivision or any public instrumentality thereof, in each case having an Investment Grade Rating;
(4)certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances issued by any commercial bank having a combined capital and surplus in excess of $250.0 million, in the case of U.S. banks, and $100.0 million, in the case of non-U.S. banks;
(5)repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) and (4) entered into with any bank meeting the qualifications specified in clause (4) above;
(6)bonds with an Investment Grade Rating and Preferred Stock issued by Persons with an Investment Grade Rating, including municipal bonds, corporate bonds and treasury bonds;
(7)(i) commercial paper issued by any bank meeting the qualifications specified in clause (4) above or by the parent company of any such bank, (ii) commercial paper with a short- term commercial paper rating of at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s, or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments, and (iii) marketable short-term money market and similar funds having the equivalent of an Investment Grade Rating;
(8)interests in any money market fund substantially all of the assets of which are comprised of instruments of the type specified in clauses (1) through (7) above;
(9)other securities and financial instruments which offer a security comparable to the instruments specified in clauses (1) through (8) above; and
(10)in the case of any Foreign Subsidiary, investments of the type and maturity described in clauses (1) through (9) above of foreign obligors, which investments or obligors have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies.
“Cash Management Agreement” means any agreement providing cash management services for collections, treasury management services (including controlled disbursement, overdraft, automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer
services that is in effect on the Issue Date or thereafter and is by and among the Company or any of its Subsidiaries and a Cash Management Bank.
“Cash Management Bank” means the administrative agent and any lender under the ABL Facility or any Affiliate or branch thereof that is a party to a Cash Management Agreement with the Company or any of its Subsidiaries and, with respect to any Cash Management Agreement entered into prior to the Issue Date, any Person that was the administrative agent, a lender under the ABL Facility or any Affiliate thereof at the time it entered into a Cash Management Agreement with the Company or any of its Subsidiaries.
“Change of Control” means:
(1)any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent entities (or their successors by merger, amalgamation, consolidation or purchase of all or substantially all of their assets);
(2)the merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company or the merger or amalgamation of any Person with or into a Subsidiary of the Company, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Company, immediately prior to such transaction, hold securities of the surviving, continuing or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
(3)the first day on which a majority of the members of the full Board of Directors of the Company or any direct or indirect parent entity of the Company are not Continuing Directors;
(4)the sale, assignment, conveyance, transfer, lease or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company or any direct or indirect parent entity of the Company and its Subsidiaries, taken as a whole, to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act);
(5)the adoption by the shareholders of the Company or any direct or indirect parent entity of the Company of a plan or proposal for the liquidation or dissolution of the Company; or
(6)the occurrence of any event or circumstance that constitutes a “change of control” (as such term (or any reasonably synonymous term) is defined under any of the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2025 Euro Notes Indenture, the 2024 Notes Indenture or the New 2L Notes Indenture (or under any documents governing any Indebtedness that has refinanced any of the foregoing)).
“China Joint Venture” means the Company’s joint venture with Inspur Group, Inspur Financial Technology Service Co., Ltd. (including any successor entity thereto).
“China JV Restructuring” means a transaction or series of related transactions restructuring the ownership holdings of (i) Diebold Financial Equipment Company (“DFEC”), an entity formed under the laws of the People’s Republic of China and owned by Diebold Nixdorf Switzerland Holding Company Sarl, a limited liability company formed under the laws of Switzerland (“Swiss Holdco”) and IFIT, and (ii) Inspur Financial Information Technology Co., Ltd. (“IFIT”), an entity formed under the laws of the People’s Republic of China and as of the Original Issue Date owned by Swiss Holdco and a third-party joint venture partner (the “IFIT Partner”), pursuant to which Swiss Holdco will continue to hold ownership interests in IFIT directly and in DFEC indirectly and, for the avoidance of doubt, any Asset Dispositions, Investments and Restricted Payments made and/or received by DFEC, IFIT, Swiss Holdco and the IFIT Partner for the purpose of consummating such restructuring transactions; provided that no assets of the Company or any Subsidiary of the Company (other than those of DFEC and IFIT and Capital Stock of such entities) shall be subject to the China JV Restructuring and no assets shall be transferred to the IFIT Partner in connection therewith except for Restricted Payments made on a ratable basis otherwise permitted by this Indenture (without reference to this definition).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means, collectively, all of the assets and property (including Capital Stock) and interests therein and proceeds thereof, whether now owned or hereafter acquired, other than Excluded Property, in or upon which a Lien is granted pursuant to the Collateral Documents as security for the Obligations under this Indenture, the Notes, the Note Guarantees and any related Obligations, but shall in all events with respect to Note Parties organized or incorporated outside the United States (or any state or territory thereof), other than the Canadian Note Parties, be limited by and subject in all respects to the Agreed Security Principles and exclude all Foreign Excluded Property.
“Collateral and Guarantee Requirements” means, at any time, collectively, the Domestic Collateral and Guarantee Requirement, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
“Collateral Documents” means, collectively, the Security Agreement, each Mortgage, the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents and the other security agreements, pledge agreements, deeds of hypothec, agency agreements, mortgages, deeds of trust, collateral assignments, collateral agency agreements, control agreements, debentures, charges and other instruments and documents executed and delivered by the Company or any Guarantor pursuant to this Indenture or any of the foregoing (including, without limitation, the financing statements under the Uniform Commercial Code of the relevant state or the PPSA of the relevant provinces or territories), as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is pledged, assigned, charged or granted to or on behalf of the Notes Collateral Agent for the ratable benefit of the Holders and the Trustee or perfected or notice of such pledge, assignment or grant is given.
“Commodity Agreement” means, with respect to any Person, any commodity future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is a party or beneficiary.
“Common Stock” means with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock, whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
“Company” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to ARTICLE 5.
“Consolidated Coverage Ratio” means as of any date of determination, with respect to any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available to (y) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:
(1)if the Company or any Subsidiary:
(g)has Incurred any Indebtedness since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period and the discharge of any other Indebtedness repaid, repurchased, redeemed, retired, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; or
(h)has repaid, repurchased, redeemed, retired, defeased or otherwise discharged any Indebtedness since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes a discharge of Indebtedness (in each case, other than Indebtedness Incurred under any revolving Debt Facility unless such Indebtedness has been permanently repaid and the related commitment terminated and not replaced), Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such discharge had occurred on the first day of such period;
(2)if since the beginning of such period, the Company or any Subsidiary will have made any Asset Disposition or disposed of or discontinued (as defined under GAAP) any company, division, operating unit, segment, business, group of related assets or line of business or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes such a transaction:
(i)the Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) directly attributable to the assets that are the subject of such disposition or discontinuation for such period or increased by an amount equal to the Consolidated EBITDA (if negative) directly attributable thereto for such period; and
(j)Consolidated Interest Expense for such period will be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of the Company or any Subsidiary repaid, repurchased, redeemed, retired, defeased or otherwise discharged (to the extent the related commitment is permanently reduced) with respect to the Company and its continuing Subsidiaries in connection with such transaction for such period (or, if the Capital Stock of any Subsidiary is sold, the Consolidated Interest Expense for
such period directly attributable to the Indebtedness of such Subsidiary to the extent the Company and its continuing Subsidiaries are no longer liable for such Indebtedness after such sale);
(3)if since the beginning of such period the Company or any Subsidiary (by merger, amalgamation or otherwise) will have made an Investment in any Subsidiary (or any Person that becomes a Subsidiary or is merged or amalgamated with or into the Company or a Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of a company, division, operating unit, segment, business, group of related assets or line of business, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and
(4)if since the beginning of such period any Person (that subsequently became a Subsidiary or was merged or amalgamated with or into the Company or any Subsidiary since the beginning of such period) will have Incurred any Indebtedness or discharged any Indebtedness or made any disposition or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (1), (2) or (3) above if made by the Company or a Subsidiary during such period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations (and, for the avoidance of doubt, all other calculations to be made pursuant to this definition) shall be made in good faith by a responsible financial or accounting officer of the Company. Without duplication of clauses (h) and (i) under section (1) of the definition of “Consolidated EBITDA,” any such calculation shall give effect to the Synergies, Costs of Synergies and other non-recurring costs, charges, accruals, reserves or expenses that have been incurred or realized or are reasonably anticipated to be incurred or realized in good faith subject, in any calculation of pro forma Consolidated EBITDA, to the applicable limitations on such Synergies, Costs of Synergies and other non-recurring costs, charges, accruals, reserves or expenses set forth in the definition of “Consolidated EBITDA.”
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the rate in effect on the date of determination had been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of twelve months). If any Indebtedness that is being given pro forma effect bears an interest rate at the option of the Company, the interest rate shall be calculated by applying such optional rate chosen by the Company. In making any pro forma calculation, the amount of Indebtedness under any revolving Debt Facility outstanding on the date of determination (other than any Indebtedness Incurred under such facility in connection with the transaction giving rise to the need to calculate the Consolidated Coverage Ratio) will be deemed to be:
(i)the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding; or
(ii)if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such determination.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1)increased (without duplication) by the following items to the extent deducted in calculating such Consolidated Net Income:
(a)Consolidated Interest Expense; plus
(b)Consolidated Income Taxes; plus
(c)consolidated depreciation and amortization expense; plus
(d)goodwill, long-lived assets and other impairment charges; plus
(e)other non-cash charges, including any write-offs or write-downs (excluding any such non-cash charge to the extent it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense that was capitalized at the time of payment); plus
(f)(i) any fees, costs, expenses or charges related to any Equity Offering, Asset Disposition or other Investment permitted under this Indenture, recapitalization or Incurrence or amendments of Indebtedness permitted to be made under this Indenture (whether or not successful) and (ii) any fees, costs, expenses or charges Incurred by the Company or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or Net Cash Proceeds of an issuance of Capital Stock of the Company; plus
(g)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Asset Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); plus
(h)synergies and cost savings of the Company and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives (“Synergies”) and costs, charges, accruals, reserves or expenses of the Company and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Asset Disposition by the Company or its Subsidiaries outside the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring initiatives enacted after the date hereof (it being understood any such increases pursuant to this clause (h) related to an Asset Disposition shall only be available subject to the consummation of the Asset Disposition and not in contemplation thereof), in each case, that are set forth in an Officer’s Certificate
and that are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Company in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Asset Disposition or the decision to implement such restructuring initiative (calculated on a pro forma basis in a manner consistent with the definition of “Consolidated Coverage Ratio” and net of the amount of actual benefits realized during such period from such actions to the extent already included in Consolidated Net Income for such period); provided that the aggregate amount added back in reliance on this clause (h) in any four-fiscal quarter period shall not exceed 10.0% of Consolidated EBITDA for such four-fiscal quarter period (calculated before giving effect to any add-backs and adjustments in this clause (h) and in clause (i) below); plus
(i)non-recurring costs, charges, accruals, reserves or expenses attributable or related to the Company’s DN Now transformation program Incurred by the Company and its Subsidiaries that are set forth in an Officer’s Certificate and are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate); provided that (x) the aggregate amount added back in reliance on this clause (i) in the year ending December 31, 2020 shall not exceed
$80.0 million, (y) the aggregate amount added back in reliance on this clause (i) in the year ending December 31, 2021 shall not exceed $50.0 million and (z) no amount shall be added back in reliance on this clause (i) in any period after December 31, 2021; and
(2)decreased (without duplication) by non-cash items increasing such Consolidated Net Income (excluding any such items which represent the recognition of deferred revenue, the reversal of any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period, and any such items for which cash was received in a prior period that did not increase Consolidated EBITDA in any prior period) and if Consolidated Income Taxes is a benefit, by the amount of such benefit.
“Consolidated Income Taxes” means, with respect to any Person for any period, taxes imposed upon such Person or any of its consolidated Subsidiaries or other payments required to be made by such Person or any of its consolidated Subsidiaries to any governmental authority, which taxes or other payments are calculated by reference to the income or profits or capital of such Person or any of its consolidated Subsidiaries (to the extent such income or profits were included in computing Consolidated Net Income for such period), including, without limitation, state, provincial, territorial, franchise and similar taxes and foreign withholding taxes regardless of whether such taxes or payments are required to be remitted to any governmental authority.
“Consolidated Interest Expense” means, with respect to any Person for any period, the total interest expense of such Person and its consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, whether paid or accrued, plus, to the extent not included in such interest expense (without duplication):
(1)interest expense attributable to Capitalized Lease Obligations;
(2)amortization of debt discount (including the amortization of original issue discount resulting from the issuance of Indebtedness at less than par) and debt issuance costs; provided, however, that any amortization of bond premium will be credited to reduce
Consolidated Interest Expense unless, pursuant to GAAP, such amortization of bond premium has otherwise reduced Consolidated Interest Expense;
(3)non-cash interest expense, but any non-cash interest income or expense attributable to the movement in the mark-to-market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP shall be excluded from the calculation of Consolidated Interest Expense;
(4)commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing;
(5)the interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries;
(6)the net costs associated with entering into Hedging Obligations (including amortization of fees) related to Indebtedness;
(7)interest expense of such Person and its Subsidiaries that was capitalized during such period; and
(8)the product of (a) all dividends paid or payable, in cash, Cash Equivalents or Indebtedness or accrued during such period on any series of Disqualified Stock or on Preferred Stock of Non-Guarantor Subsidiaries payable to a party other than the Company or a Wholly Owned Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state, provincial, territorial and local statutory tax rate of such Person, expressed as a decimal, in each case on a consolidated basis and in accordance with GAAP.
For purposes of the foregoing, total interest expense will be determined (i) after giving effect to any net payments made or received by the Company and its Subsidiaries with respect to Interest Rate Agreements and (ii) exclusive of amounts classified as other comprehensive income on the balance sheet of the Company. Notwithstanding anything to the contrary contained herein, subject to the proviso above, commissions, discounts, yield and other fees and charges Incurred in connection with any transaction pursuant to which the Company or its Subsidiaries may sell, convey or otherwise transfer or grant a security interest in any accounts receivable or related assets shall be included in Consolidated Interest Expense.
“Consolidated Net Income” means, for any period, the net income (loss) of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided, however, that there will not be included in such Consolidated Net Income on an after-tax basis:
(1)any net income (loss) of any Person if such Person is not a Subsidiary or that is accounted for by the equity method of accounting, except that:
(k)subject to the limitations contained in clauses (3) through (9) below, the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Subsidiary, to the limitations contained in clause (2) below); and
(l)the Company’s equity in a net loss of any such Person for such period will be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Company or a Subsidiary;
(2)any net income (but not loss) of any Subsidiary (other than a Guarantor) if such Subsidiary is subject to prior government approval or other restrictions due to the operation of its charter or any agreement, instrument, judgment, decree, order statute, rule or government regulation (which have not been obtained or waived), directly or indirectly, on the payment of dividends or the making of distributions by such Subsidiary, directly or indirectly, to the Company, except that:
(m)subject to the limitations contained in clauses (3) through (9) below, the Company’s equity in the net income of any such Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Subsidiary during such period to the Company or another Subsidiary as a dividend (subject, in the case of a dividend to another Subsidiary, to the limitation contained in this clause); and
(n)the Company’s equity in a net loss of any such Subsidiary for such period will be included in determining such Consolidated Net Income;
(3)any gain or loss (excluding all fees and expenses relating thereto) realized upon sales or other dispositions of any assets of the Company or such Subsidiary outside the ordinary course of business;
(4)any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity-based awards, including any such charge or expense Incurred in connection with any merger, amalgamation, consolidation or acquisition;
(5)any income or loss from the early extinguishment of Indebtedness or early termination of Hedging Obligations or other derivative instruments;
(6)any extraordinary gain or loss;
(7)any net after-tax effect of gains or losses attributable to disposed or discontinued operations;
(8)any net income or loss included in the consolidated statement of operations with respect to noncontrolling interests; and
(9)the cumulative effect of a change in accounting principles.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company or any direct or indirect parent company of the Company who: (1) was a member of such Board of Directors on the Issue Date; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.
“Control Agreement” means an agreement, in form and substance reasonably satisfactory to the Trustee (and, in the case of protections for the benefit of the Notes Collateral Agent or obligations of the Notes Collateral Agent, the Notes Collateral Agent), which provides for the Notes Collateral Agent to have control (including “control” as defined in Section 9-104 of the UCC or Section 8-106 of the UCC,
as applicable) of “deposit accounts” (as defined in the UCC or the Canadian Collateral Agreement, as applicable) or “securities accounts” (as defined in the UCC or PPSA), as applicable.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Holders and the Company.
“Covered Guarantors” means Diebold Global Finance Corporation, Diebold Holding Company, LLC, Diebold SST Holding Company, LLC, Diebold Nixdorf Technology Finance, LLC, Griffin Technology Incorporated, Diebold Self Service Systems, Diebold Nixdorf Canada, Limited, Diebold Canada Holding Company Inc., Diebold Nixdorf BV, Diebold Nixdorf Global Holding, B.V., the Dutch Issuer Guarantor, Diebold Nixdorf B.V., Diebold Nixdorf Software Partner B.V., Diebold Nixdorf Software C.V., Diebold Nixdorf Global Solutions B.V., Diebold Nixdorf Holding Germany GmbH, Wincor Nixdorf International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, Diebold Nixdorf Global Logistics GmbH, Wincor Nixdorf Facility GmbH, Diebold Nixdorf Real Estate GmbH & CoKG, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Finance Germany GmbH, Diebold Nixdorf S.r.l., Diebold Nixdorf sp. z o.o., Diebold Nixdorf BPO sp. z.o.o., Diebold Nixdorf S.L., Diebold Nixdorf AB and Diebold Nixdorf (UK) Limited.
“Currency Agreement” means, with respect to any Person, any foreign exchange future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is a party or a beneficiary.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Debt Facility” means one or more debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee of such Debt Facility).
“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Definitive Note” means a certificated Existing Note or Additional Note (bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law) that does not include the Global Notes Legend.
“Depositary” means, with respect to the Notes issuable or issued in whole or in part in global form, the Person specified in Section 2.03 as the Depositary with respect to the Notes, and any and all successors thereto appointed as Depositary hereunder and having become such pursuant to the applicable provision of this Indenture.
“Diebold Germany” means Diebold Nixdorf Holding Germany GmbH.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
(1)matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(2)is convertible into or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Company) (it being understood that upon such conversion or exchange it shall be an Incurrence of such Indebtedness or Disqualified Stock)); or
(3)is redeemable at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the date 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further, that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company or its Subsidiaries to repurchase such Capital Stock upon the occurrence of a Change of Control or Asset Disposition (each defined in a substantially identical manner to the corresponding definitions in this Indenture) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) provide that the Company or its Subsidiaries, as applicable, are not required to repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) pursuant to such provision prior to compliance by the Company with Section 4.15 and Section 4.16 and such repurchase or redemption complies with Section 4.08. Notwithstanding the foregoing, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, Officers, employees, members of management, managers or consultants or by any such plan to such directors, Officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Company or any Subsidiary, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, Officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Company (or any Subsidiary) shall be considered Disqualified Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, shareholder agreement or similar agreement that may be in effect from time to time.
“Domestic Collateral and Guarantee Requirement” means, at any time and solely with respect to each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Trustee and the Notes Collateral Agent shall have received from (i) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the applicable supplemental indenture hereto duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplemental indenture hereto duly executed and delivered on behalf of such Person, (ii) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Security Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that
becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Note Documents executed and delivered after the Issue Date, documents and, to the extent reasonably requested by the Trustee or the Notes Collateral Agent;
(b)all outstanding Capital Stock of the Company and the Subsidiaries (other than any Capital Stock constituting Excluded Property) owned by or on behalf of any Domestic Note Party shall have been pledged pursuant to the Security Agreement and the Notes Collateral Agent shall have received certificates or other instruments representing all such Capital Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Domestic Note Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Security Agreement and the Notes Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, Control Agreements and intellectual property security agreements, required by the Collateral Documents or Requirements of Law and reasonably requested by the Trustee, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Domestic Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Trustee in proper form for filing, registration or recording;
(e)the Notes Collateral Agent shall have received as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Notes Collateral Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Notes Collateral Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Notes Collateral Agent, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 4.10, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Notes Collateral Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Notes Collateral Agent of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies
referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vi) completed “Life-of-
Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Note Party relating thereto), (vii) if any Mortgaged Property is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors and the other Flood Insurance Regulations, and (viii) such legal opinions as the Trustee or the Notes Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Domestic Note Party on the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree), (ii) with respect to any Required Account established by a Domestic Note Party after the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Trustee shall reasonably agree), and
(iii) with respect to any Required Account acquired by a Domestic Note Party after the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Trustee shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Trustee. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement, (ii) the Lien thereon securing the obligations under the Superpriority Credit Facility is subject to the Intercreditor Agreements or (iii) the Lien thereon securing the obligations under the 2025 Credit Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Note Parties, or the provision of Guarantees by any Subsidiary (i) if, and for so long as and to the extent that the Trustee and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other taxes)), outweighs the benefits to be obtained by the Holders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti- assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral shall include any
proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Domestic Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Collateral Documents, (c) except with respect to any Required Accounts, in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 and, other than the filing of UCC financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Capital Stock of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) no Note Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Property. The Trustee may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Issue Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Indenture or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Credit Facility, 2025 Credit Facility, 2023 Credit Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Domestic Note Party” means a Note Party that is not a Foreign Subsidiary. “Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.
“Domination Agreement” means a domination agreement (Beherrschungvertrag) within the meaning of Sec 291(1) of the German Stock Corporation Act (Aktiengesetz) among the Company (or any of its direct or indirect Wholly Owned Subsidiaries), Wincor Nixdorf and the other parties thereto.
“DTC” means The Depository Trust Company.
“Dutch Collateral Agreements” means the collateral agreements governed by Dutch law set forth on Appendix C hereof, each dated as of the Issue Date between each Note Party from time to time party thereto and the Notes Collateral Agent.
“Dutch Collateral Documents” means each of the Dutch Collateral Agreements, and each other security agreement, pledge, mortgage or other instrument or document, as applicable, governed by Dutch law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Dutch Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Dutch Guarantor” means the Dutch Issuer Guarantor and any other Guarantor organized or incorporated in the Netherlands.
“Dutch Issuer Guarantor” means Diebold Nixdorf Dutch Holding B.V.
“EMU” means the European Economic and Monetary Union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
“EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states of the European Union.
“English Collateral Agreements” means the collateral agreements governed by English law set forth on Appendix C hereof.
“English Collateral Documents” means (a) the English Collateral Agreements and (b) each other security agreement, charge, assignment by way of security, lien, pledge, debenture, hypothec, mortgage or other instrument or document, as applicable, governed by English law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each English Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Equity Offering” means an offering for cash by the Company of its Common Stock, or options, warrants or rights with respect to its Common Stock, other than (1) public offerings with respect to the Company’s Common Stock, or options, warrants or rights, registered on Form S-4 or S-8, (2) an issuance to any Subsidiary or (3) any offering of Common Stock issued in connection with a transaction that constitutes a Change of Control.
“Euro” means the single currency unit of the member states of the European Union that have the euro as their lawful currency in accordance with the EMU Legislation.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Excluded Property” means:
(1)any fee-owned real property located outside the United States (i) that is excluded to the extent that security interests over such assets would result in material adverse tax treatment or (ii) that is not Material Real Property;
(2)any fee-owned real property located in the United States that is not Material Real
Property;
(3)leasehold interests (it being understood that there shall be no requirement to
obtain leasehold mortgages/deeds of trusts, landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents);
(4)those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti- assignment provisions of the Uniform Commercial Code, the PPSA or other applicable law), or to the extent that such security interests would result in material adverse tax consequences to the Company and its Subsidiaries, taken as a whole, as reasonably determined in good faith by the Company;
(5)those assets as to which the Superpriority Credit Facility Administrative Agent (acting at the direction of the Required Superpriority Lenders) and the Company reasonably determine that the costs of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the holders of Priority Secured Indebtedness under the Superpriority Credit Facility of the security to be afforded thereby;
(6)any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto;
(7)to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Superpriority Credit Facility Administrative Agent (acting at the direction of the Required Superpriority Lenders), equity interests in any person other than Wholly Owned Subsidiaries;
(8)margin stock;
(9)letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that the Company and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below $2,000,000 (except to the extent perfection can be achieved by the filing of a Uniform Commercial Code financing statement or PPSA financing statement in the state of the Company or such Guarantor’s jurisdiction of organization or location of its chief executive office, as applicable);
(10)any governmental licenses or state, provincial, territorial or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and the PPSA, as applicable, and excluding the proceeds and receivables thereof);
(11)any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Company or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and the PPSA, as applicable, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or the PPSA notwithstanding such prohibition, but in each case subject to the terms of the Collateral and Guarantee Requirements (other than to the extent no additional action needs to be taken with respect to any such assets to create or perfect a security interest in any such assets);
(12)the Specified Intercompany Claims; and
(13)any property excluded pursuant to the Agreed Security Principles;
provided, however, that notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, any asset (other than the Paderborn Property) that does not constitute “Excluded Property” or “Excluded Assets”, as applicable, under and as defined in the 2025 Euro Notes Indenture, New 2L Notes Indenture, Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, and/or the ABL Facility shall not constitute “Excluded Property” for purposes of this Indenture and the other Note Documents.
“Excluded Subsidiary” means any (i) Foreign Subsidiary (other than a Specified Foreign Subsidiary), (ii) Domestic Subsidiary of a Foreign Subsidiary (other than a Specified Foreign Subsidiary),
(iii) Domestic Subsidiary substantially all of the assets of which are Capital Stock or Indebtedness of Excluded Subsidiaries under clause (i) of this definition, (iv) other Subsidiary excused from becoming a Note Party pursuant to clause (a) of the penultimate paragraph of the definition of the term “Domestic Collateral and Guarantee Requirement” or of the term “Canadian Collateral and Guarantee Requirement” or the terms of the Agreed Security Principles, (v) any non-Wholly Owned Subsidiary to the extent the provision of a Guarantee or granting of a Lien thereby is restricted or prohibited pursuant to applicable local law or contractual requirements and (vi) Immaterial Subsidiaries.
“Fair Market Value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Company in good faith (including as to the value of all non- cash assets and liabilities).
“First Lien Pari Passu Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Collateral Agent, Superpriority Credit Facility Administrative Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, the 2023 Credit Facility Administrative Agent, the 2023 Credit Facility Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Foreign Collateral” means, collectively, the Non-ABL Foreign Collateral and the ABL Priority Foreign Collateral.
“Foreign Excluded Property” means any asset or undertaking not required to be charged or secured or not subject to any applicable Collateral Document pursuant to and in accordance with the terms of the Canadian Collateral and Guarantee Requirement and Agreed Security Principles.
“Foreign Intellectual Property” means any right, title or interest in or to any intellectual property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.
“Foreign Note Documents” means the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents, any supplemental indenture hereto relating to the addition of Foreign Note Parties and any other Note Document which is not governed by the laws of the United States of America or any state or territory thereof.
“Foreign Note Parties” means each Note Party organized under the laws of a jurisdiction outside of the United States.
“Foreign Subsidiary” means any Subsidiary that is not organized under the laws of the United States or any state thereof or the District of Columbia.
“French Collateral Agreements” means the collateral agreements governed by French law set forth on Appendix C hereof.
“French Collateral Documents” means the French Collateral Agreements and each security agreement, pledge, mortgage, any type of security (sûreté réelle), transfer or assignment by way of security and fiducie-sûreté or other instrument or document, as applicable, governed by French law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each French Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“French Commercial Code” means the French Code de commerce. “French Guarantor” means any Guarantor incorporated in France.
“GAAP” means generally accepted accounting principles in the United States as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. Unless otherwise specified, all ratios and computations, contained in this Indenture will be computed in conformity with GAAP, except that (1) in the event the Company is acquired in a transaction that is accounted for using purchase accounting, the effects of the application of purchase accounting shall be disregarded in the calculation of such ratios and other computations contained in this Indenture and (2) all obligations of the Company and its Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP prior to January 1, 2019 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Indenture regardless of any change in GAAP on or after January 1, 2019 (or any change in the implementation in GAAP for future periods that are contemplated as of such date) that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation or otherwise as Indebtedness.
“German Collateral Agreements” means the collateral agreements governed by German law set forth on Appendix C hereof.
“German Collateral Documents” means each of the German Collateral Agreements, and each other security agreement or other instrument or document, as applicable, governed by German law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each German Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Government Securities” means securities that are (1) direct obligations of the United States for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.
“Guarantee” means (1) any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and (2) any obligation, direct or indirect, contingent or otherwise, of such Person:
(a)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or
(b)entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business.
“Guarantor” means each Subsidiary in existence on the Original Issue Date that provides a Note Guarantee on the Original Issue Date (and any other Subsidiary that provides a Note Guarantee after the Original Issue Date); provided that upon release or discharge of such Subsidiary from its Note Guarantee in accordance with this Indenture, such Subsidiary ceases to be a Guarantor.
“Guarantor Release Protection Provisions” mean (a) each of the provisions under (i) ARTICLE 10, (ii) Section 4.11 and (iii) Section 5.01, and (b) the Event of Default described in clause (9) under the definition of “Event of Default.”
“Guarantor Subordinated Obligation” means, with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Guarantor under its Note Guarantee.
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Agreement.
“Holder” means a Person in whose name a Note is registered on the Registrar’s books. “Immaterial Subsidiary” means, as of any date of determination, any Subsidiary that,
together with its Subsidiaries on a consolidated basis, accounts for not more than (1) 5.0% of the total
assets of the Company and its Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or (2) 5.0% of the total revenues (after intercompany eliminations) of the Company and its Subsidiaries for the period of the most recent four consecutive fiscal quarters ending on such balance sheet date; provided that the aggregate total assets or revenues for all Immaterial Subsidiaries shall not at any time exceed 10.0% of the total assets or revenues (after intercompany eliminations) of the Company and its Subsidiaries; provided further that, irrespective of the foregoing, a Subsidiary shall not be considered to be an Immaterial Subsidiary if it is a borrower or Guarantees any Priority Secured Indebtedness or Pari Passu Secured Indebtedness or Guarantees any other Indebtedness for borrowed money of the Company or any Guarantor.
“Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be
deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary; and the terms “Incurred”, “Incurring” and “Incurrence” have meanings correlative to the foregoing.
“Indebtedness” means, with respect to any Person on any date of determination (without
duplication):
(1)the principal of and premium (if any) in respect of indebtedness of such Person
for borrowed money;
(2)the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)all reimbursement obligations of such Person in respect of letters of credit (other than letters of credit that are secured by cash or Cash Equivalents), bankers’ acceptances or other similar instruments (excluding reimbursement obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade payables, unless such obligation remains unsatisfied for more than five Business Days);
(4)the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (including earn-out obligations), which purchase price is due more than three months after the date of placing such property in service or taking delivery and title thereto, except
(a) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business, and (b) any earn-out obligation until the amount of such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP;
(5)Capitalized Lease Obligations of such Person;
(6)the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Non-Guarantor Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness of such other Persons;
(8)the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person (whether or not such items would appear on the balance sheet of such Person in accordance with GAAP); and
(9)to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Obligation that would be payable by such Person at such time).
Notwithstanding the foregoing, money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to pre-fund the payment of interest on such Indebtedness shall not be deemed to be “Indebtedness”; provided that such money is held to secure the payment of such interest.
Notwithstanding the foregoing, the amount of any Indebtedness outstanding as of any date shall (i) be the accreted value thereof in the case of any Indebtedness issued with original issue discount or the aggregate principal amount outstanding in the case of Indebtedness issued with interest payable in kind and (ii) include any interest (or in the case of Preferred Stock, dividends) thereon that is more than 30 days past due. Except to the extent provided in the preceding sentence, the amount of any Indebtedness that is convertible into or exchangeable for Capital Stock of the Company outstanding as of any date shall be deemed to be equal to the principal and premium, if any, in respect of such Indebtedness, notwithstanding the provisions of GAAP (including Accounting Standards Codification Topic 470-20, Debt-Debt with Conversion and Other Options).
For purposes of clause (6) above, the “maximum mandatory redemption or repurchase price” of any Disqualified Stock or Preferred Stock, as applicable, that does not have a fixed redemption or repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock, as applicable, as if such Disqualified Stock or Preferred Stock, as applicable, were redeemed or repurchased on any date on which an amount of Indebtedness outstanding shall be required to be determined pursuant to this Indenture.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
“Intercreditor Agreements” means, collectively, the ABL Intercreditor Agreement, the First Lien Pari Passu Intercreditor Agreement, the Junior Lien Pari Passu Intercreditor Agreement, the Non-Released Multi Lien Intercreditor Agreement and the Multi Lien Intercreditor Agreement.
“Interest Period” means, with respect to any Note, the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next Interest Payment Date, with the exception that the first Interest Period with respect to any Note shall commence on and include the Original Issue Date or the Issue Date, as applicable, of such Notes and end on and exclude the first Interest Payment Date to occur after such date (the Interest Payment Date for any Interest Period shall be the interest payment date occurring on the date immediately following the last day of such Interest Period).
“Interest Payment Date” means January 15 and July 15 of each year to the Stated Maturity of the Notes.
“Interest Rate Agreement” means, with respect to any Person, any interest rate future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is party or a beneficiary.
“Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (including by way of Guarantee or similar arrangement, but excluding (i) accounts receivable and other extensions of trade credit and/or accrued expenses, in each case arising in the ordinary course of business and payable in accordance with customary practices and (ii) any debt or extension of credit represented by a bank deposit (other than a time deposit)) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided that none of the following will be deemed to be an Investment:
(1)Hedging Obligations entered into in the ordinary course of business and in compliance with this Indenture;
(2)endorsements of negotiable instruments and documents in the ordinary course of
business;
(3)an acquisition of assets, Capital Stock or other securities by the Company or a
Subsidiary for consideration to the extent such consideration consists of Common Stock of the Company;
(4)the acquisition of property and other assets from suppliers and other vendors in the ordinary course of business; and
(5)prepaid expenses and workers’ compensation, utility, lease and similar deposits in the ordinary course of business.
(1)any property transferred to or from a Subsidiary will be valued at its Fair Market Value at the time of such transfer; and
(2)if the Company or any Subsidiary sells or otherwise disposes of any Voting Stock of any Subsidiary such that, after giving effect to any such sale or disposition, such entity is no longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Capital Stock of such Subsidiary not sold or disposed of.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any other equivalent rating by any Rating Agency, in each case, with a stable or better outlook.
“Issue Date” means December 29, 2022.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, integrated and supplemented from time to time.
“Italian Civil Code” means the Italian civil code (“codice civile”), enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Collateral Agreements” means the collateral agreements governed by Italian law set forth on Appendix C hereof.
“Italian Collateral Documents” means the Italian Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Italian law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Italian Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Italian Guarantor” shall mean a Guarantor organized or incorporated in Italy. “Junior Lien” means a Lien, junior to the Liens on the Collateral securing Pari Passu
Secured Indebtedness pursuant to the Junior Lien Pari Passu Intercreditor Agreement, granted by the Company or any Guarantor to secure Junior Lien Obligations. Liens on the Collateral securing ABL Indebtedness shall be deemed not to be Junior Liens.
“Junior Lien Documents” means, collectively, any indenture, note, security document and each of the other agreements, documents and instruments providing for or evidencing any Junior Lien Obligations, and any other document or instrument executed or delivered at any time in connection with any Junior Lien Obligations, to the extent such are effective at the relevant time, in each case as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Junior Lien Indebtedness.
“Junior Lien Indebtedness” means any Indebtedness of the Company or any Guarantor that is secured by a Junior Lien; provided that, in the case of any Indebtedness referred to in this definition:
(1)such Indebtedness does not mature and does not have any mandatory or scheduled payments or sinking fund obligations prior to the maturity date of the Notes (except as a result of customary change of control or asset sale repurchase offer provisions; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company or such Guarantor has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer);
(2)on or before the date on which the first such Indebtedness is Incurred by the Company or any Guarantor, the Company shall deliver to each Authorized Representative complete copies of each applicable Junior Lien Document (which shall provide that each secured party with respect to such Indebtedness shall be subject to and bound by the Junior Lien Pari Passu Intercreditor Agreement), along with an Officer’s Certificate certifying as to such Junior Lien Documents and identifying the obligations constituting Junior Lien Obligations;
(3)on or before the date on which any such Indebtedness is Incurred by the Company or any Guarantor, such Indebtedness is designated by the Company, in an Officer’s Certificate delivered to the Junior Lien Representative and each Authorized Representative, as “Junior Lien Indebtedness” under this Indenture;
(4)a Junior Lien Representative is designated with respect to such Indebtedness and executes and delivers the Junior Lien Pari Passu Intercreditor Agreement (including, as applicable, a joinder thereto) on behalf of itself and all holders of such Indebtedness; and
(5)all other requirements set forth in the Junior Lien Pari Passu Intercreditor Agreement as to the confirmation, grant or perfection of the Liens of the holders of Junior Lien Indebtedness to secure such Indebtedness or Obligations in respect thereof are satisfied.
“Junior Lien Obligations” means Junior Lien Indebtedness and all other Obligations in
respect thereof.
“Junior Lien Pari Passu Intercreditor Agreement” means an intercreditor agreement
which subordinates the Lien on the Collateral of the holders of the Junior Lien Indebtedness to the Lien on the Collateral of each of the holders of Pari Passu Secured Indebtedness and the terms of which are consistent with market terms (in the view of the Administrative Agent (as defined therein)) governing security arrangements for the subordination and sharing of Liens or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.
“Junior Lien Representative” means in the case of any series of Junior Lien Indebtedness, the trustee, agent or representative of the holders of such series of Junior Lien Indebtedness who is appointed as a representative of the Junior Lien Indebtedness (for purposes related to the administration of security interests) pursuant to the applicable Junior Lien Document governing such series of Junior Lien Indebtedness, together with its successors and assigns in such capacity.
“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code or the PPSA (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Loan” means any loans made by the lenders to Diebold Germany under the Superpriority Credit Facility.
“Loan Party” means Diebold Germany or any Guarantor that is also a guarantor under the Superpriority Credit Facility.
“Material Real Property” means, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned in fee by the Company or any Guarantor having a Fair Market Value at the time in excess of $10.0 million.
“Moody’s” means Moody’s Investors Services, Inc. or any successor to its rating agency
business.
“Mortgaged Property” means any real property and the improvements thereon owned in
fee by a Note Party with respect to which a Mortgage is granted pursuant to Section 11.06.
“Mortgages” means the mortgages, land charges, debentures, deeds of hypothec, deeds of trust, deeds to secure Indebtedness or other similar documents in legally sufficient form to secure Liens on the Premises, as well as the other Collateral secured by and described in the mortgages, land charges, debentures, deeds of hypothec, deeds of trust, deeds to secure Indebtedness or other similar documents.
“Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Administrative Agent, the Superpriority Credit Facility Collateral Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Net Assets” for the purpose of Section 10.02(a) (Limitation on Guarantor Liability relating to any German Guarantor) means a German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) assets pursuant to Section 266 sub-section (2) A, B, C, D and E of the German Commercial Code (Handelsgesetzbuch) less the aggregate of its liabilities pursuant to Section 266 sub-section (3) B, C, D and E of the German Commercial Code, taking into consideration the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the respective German Guarantor in the preparation of its financial statements.
“Net Assets” for the purpose of Section 10.02(f) (Limitation on Guarantor Liability relating to a Belgian Guarantor) means the net assets (netto actief / actif net) of the Belgian Guarantor as defined in article 5:142 third paragraph, article 6:115 third paragraph or article 7:212 second paragraph (as applicable) of the Belgian Companies and Associations Code (as determined in accordance with the Belgian Companies and Associations Code and Belgian GAAP, a certificate of such amount from the statutory auditor of the Belgian Guarantor (or, if no statutory auditor is appointed or the statutory auditor refuses to issue such certificate, from an accountant appointed upon the Notes Collateral Agent’s request by the “Instituut van de Bedrijfsrevisoren/Institut des Réviseurs d’Entreprises”) shall be conclusive, save in the case of manifest error).
“Net Available Cash” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities or other assets received as consideration, but only as and when received (including after release from any required escrow), but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses Incurred, and all federal, state, provincial, territorial, foreign and local taxes required to be paid or reasonably expected to be paid or accrued as a liability under GAAP (after taking into account any tax credits or deductions that are available or reasonably expected to be available and any tax sharing agreements), as a consequence of such Asset Disposition;
(2)all payments made on any Indebtedness (a) that is secured by any assets (excluding any Collateral), to the extent of the value of such assets being sold subject to such Asset Disposition and only to the extent such assets are held and sold by Non-Guarantor Subsidiaries, or (b) made by Guarantors to the extent required by (i) the terms of any applicable Priority Secured Indebtedness, (ii) any Non-Guarantor Subsidiary Indebtedness and/or (iii) applicable law;
(3)all distributions and other payments required to be made to noncontrolling interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition;
(4)the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Subsidiary after such Asset Disposition;
(5)payments of unassumed liabilities (not constituting Indebtedness) relating to the assets subject to such Asset Disposition at the time of, or within 30 days after, such Asset Disposition; and
(6)with respect to any Asset Disposition involving a disposition of assets of a Foreign Subsidiary and solely to the extent the proceeds have not been applied to reduce Indebtedness, or make capital or other permitted expenditures or investments in accordance with Section 4.16, the Net Available Cash attributable to such assets of such Foreign Subsidiary to the extent that the repatriation of such Net Available Cash to the Company or any of its Domestic Subsidiaries (i) is prohibited, restricted or delayed by applicable laws, rules or regulations or (ii) could reasonably be expected to result in adverse tax consequences to the Company and its Subsidiaries; provided that the Company will use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any costs to comply with Section 4.16.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credits or deductions and any tax sharing arrangements).
“New 2L Notes” means the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 issued pursuant to the New 2L Notes Indenture.
“New 2L Notes Collateral Agent” means GLAS Americas LLC in its capacity as the collateral agent under the New 2L Notes Indenture or any successor representative acting in such capacity.
“New 2L Notes Indenture” means that certain indenture, to be dated as of the Issue Date, among the Company, the Guarantors party thereto and the New 2L Notes Trustee and the New 2L Notes Collateral Agent, as amended or supplemented from time to time, relating to the New 2L Notes.
“New 2L Notes Trustee” means U.S. Bank Trust Company, National Association. “Non-ABL Agreement” means the collective reference to (a) the 2025 Notes Indentures
and the New 2L Notes Indenture (each, a “Notes Indenture”), (b) the 2023 Credit Facility, the 2025 Credit Facility and the Superpriority Credit Facility (each, a “Term Credit Facility”), (c) any Additional Term Debt Agreement (as defined in the ABL Intercreditor Agreement) and (d) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been Incurred to extend, replace, refinance or refund in whole or in part the Indebtedness and other obligations outstanding under any Notes Indenture, any Term Credit Facility, any Additional Notes Agreement or any other agreement or instrument referred to in this clause (d) unless such agreement or instrument expressly provides that it is not intended to be and is not a Non-ABL Agreement hereunder. Any reference to the Non-ABL Agreement hereunder shall be deemed a reference to any Non-ABL Agreement then extant.
“Non-ABL Domestic Non-Released Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which (i) constitutes “Collateral” under the 2023 Credit Facility (as in existence on the Issue Date) but (ii) does not constitute “ABL Priority Collateral” under the ABL Facility; provided, that any Non-ABL Domestic Non-Released Collateral that is for any reason after the Issue Date no longer “Collateral” under the 2023 Credit Facility shall be deemed as of such date to be Non-ABL Domestic Released Collateral.
“Non-ABL Domestic Released Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which does not constitute (i) “ABL Priority Collateral” under the ABL Facility nor (ii) “Collateral” under the 2023 Credit Facility (as in existence on the Issue Date).
“Non-ABL Foreign Collateral” means that portion of the Collateral that is held by a Foreign Subsidiary of the Company and which does not constitute “ABL Priority Collateral” under the ABL Facility.
“Non-ABL Priority Collateral” means that portion of the Collateral that is held by the Company or a Guarantor and which does not constitute “ABL Priority Collateral” under the ABL Facility.
“Non-ABL Representative” means each of the Superpriority Credit Facility Collateral Agent, the 2023 Credit Facility Collateral Agent, the 2025 Credit Facility Collateral Agent, the 2025 Notes Collateral Agents, and the New 2L Notes Collateral Agent.
“Non-ABL Secured Indebtedness” means all Obligations other than any ABL Indebtedness that are secured by a Lien on any part of the Collateral.
“Non-Borrower Subsidiary” means any Subsidiary that is not a borrower under any of the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility and the 2023 Credit Facility.
“Non-Guarantor Subsidiary” means any Subsidiary that is not a Guarantor.
“Non-Released Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Collateral Agent, the Superpriority Credit Facility Administrative Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, the 2023 Credit Facility Administrative Agent, the 2023 Credit Facility Collateral Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented, or replaced, in whole or in part, from time to time.
“Note Documents” means this Indenture, the Notes, any supplemental indenture hereto relating to the addition of Domestic Note Parties, the Collateral Documents and the Intercreditor Agreements (including in each case, any amendments thereto).
“Note Guarantee” means, individually, any Guarantee of payment of the Notes and the Company’s other Obligations under this Indenture by a Guarantor pursuant to the terms of this Indenture and any supplemental indenture thereto, and, collectively, all such Guarantees.
“Note Party” means the Company or any Guarantor.
“Notes” means the notes issued under this Indenture and more particularly means any Note authenticated and delivered under this Indenture (including the Existing Notes and the Exchange Notes) and Notes to be issued or authenticated upon transfer, replacement or exchange of Notes.
“Notes Collateral Agent” means GLAS Americas LLC, as notes collateral agent, until a successor, if any, replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, provincial, territorial, federal or foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and Guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Offer to Purchase” means an Asset Disposition Offer or a Change of Control Offer.
“Offering Memorandum” means the offering memorandum dated November 28, 2022 related to the offers to exchange existing 2025 Notes for additional 2025 Notes and the solicitation of consents to amend the 2025 Notes Indentures.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or Assistant Treasurer or the Secretary of the Company or, if the Company is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of the Company. Officer of any Guarantor has a correlative meaning.
“Officer’s Certificate” means a certificate signed by an Officer of the Company or a Guarantor, as applicable, and delivered to the Trustee or the Notes Collateral Agent, as applicable.
“On-Lending” means, without double counting, the aggregate amount of all Loans, advances and/or other proceeds made to any Loan Party and made available by any Loan Party, directly or indirectly, to the Belgian Guarantor or any of its Subsidiaries (in each case, irrespective of whether retained or on-lent by the relevant Belgian Guarantor or its Subsidiary).
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee or the Notes Collateral Agent, as applicable. The counsel may be an employee of or counsel to the Company.
“Original Issue Date” means July 20, 2020.
“Paderborn Property” means the fee-owned real property located at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany.
“Pari Passu Secured Indebtedness” means any Indebtedness of the Company or any Guarantor that ranks pari passu in right of payment with the Obligations under the Notes or the Note Guarantees and is secured by a Lien on the Collateral that has equal Lien priority with respect to the different categories of Collateral under the Lien priorities in any applicable Intercreditor Agreement relative to the Notes and the Note Guarantees (including the Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility and the 2025 Euro Notes Indenture and the 2025 Euro Notes, as applicable) and is senior in priority to the Liens securing any Junior Lien Indebtedness; provided, that, in each case, an Authorized Representative of such Indebtedness shall have executed a joinder to the applicable Intercreditor Agreements in the form provided therein.
“Perfection Certificate” means that certain perfection certificate dated as of the Issue Date, executed and delivered by each Note Party in favor of the Notes Collateral Agent on behalf of the Secured Parties.
“Permitted Equity Issuance Prepayment” means any repayment, repurchase or redemption of New 2L Notes prior to April 1, 2024, using the Permitted Equity Proceeds Prepayment Amount.
“Permitted Equity Proceeds Prepayment Amount” means Net Cash Proceeds from any Equity Offering subsequent to the Issue Date in an aggregate amount of up to $100.0 million (excluding, for the avoidance of doubt, any Net Cash Proceeds related to the Structuring Premium (as defined in the Transaction Support Agreement)).
“Permitted Investment” means an Investment:
(1)by the Company or any of its Subsidiaries in the Company or a Guarantor (including any Persons that become Guarantors or are merged, amalgamated or consolidated into the Company or a Guarantor as a result of such Investment and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer);
(2)by a Non-Guarantor Subsidiary in a Non-Guarantor Subsidiary (including any Persons that become Non-Guarantor Subsidiaries as a result of such Investment and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer);
(3)by the Company or a Guarantor in a Non-Guarantor Subsidiary (a) using cash proceeds received on or after October 20, 2022 from one or more Non-Guarantor Subsidiaries or (b) made on or after October 20, 2022 in an aggregate amount outstanding at the time of each such Investment not to exceed $10.0 million (as reduced by the amount of capital returned from any such Permitted Investment (exclusive of items reflected in Consolidated Net Income), which reductions may not exceed in the aggregate amount the amount originally invested);
(4)by the Company or any of its Subsidiaries (a) in cash and Cash Equivalents and
(b) in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany Investments to the Board of Directors of the Company; provided, further that any Investment in respect of cash management operations that exceeds $10.0 million will only be permitted to the extent that the Company reports such Investment to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following such Investment;
(5)by the Company or any of its Subsidiaries in exchange for consideration consisting only of Capital Stock (other than Disqualified Stock) of the Company or Net Cash Proceeds of a substantially concurrent sale of Capital Stock of the Company;
(6)by the Company or any of its Subsidiaries in receivables owing to the Company or any Subsidiary and extensions of trade credit in the ordinary course of business;
(7)by the Company or any of its Subsidiaries in payroll, commission, travel and similar advances to cover matters that are reasonably expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(8)by the Company or any of its Subsidiaries in the form of loans or advances to employees, Officers or directors of the Company or any Subsidiary (i) in the ordinary course of business or (ii) in an aggregate amount not to exceed $5.0 million (including, for the avoidance of doubt, any such Investments existing as of the Issue Date) at any one time outstanding to fund the purchase of Capital Stock of the Company by such persons;
(9)acquired by the Company or any of its Subsidiaries:
(o)as part of the settlement of litigation or arbitration;
(p)in exchange for any other Investment or accounts receivable held by the Company or any such Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Company of such other Investment or accounts receivable; or
(q)as a result of a foreclosure by the Company or any of its Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(10)by the Company or any of its Subsidiaries as a result of the receipt of settlement of amounts due to the Company or any Subsidiary effected in the ordinary course of business;
(11)by the Company or any of its Subsidiaries as a result of the receipt of non-cash consideration from an Asset Disposition that was made pursuant to and in compliance with Section 4.16 or any other disposition of assets not constituting an Asset Disposition;
(12)by the Company or any of its Subsidiaries in existence on the Issue Date or made pursuant to binding commitments existing on the Issue Date or an Investment consisting of any extension, modification or replacement of any such Investment or binding commitment existing on the Issue Date but, in each case, only to the extent not involving additional advances, contributions or other Investments or other increases thereof;
(13)by the Company or any of its Subsidiaries in Currency Agreements, Interest Rate Agreements, Commodity Agreements and related Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 4.09; (14)by the Company or any of its Subsidiaries in respect of Guarantees issued in accordance with Section 4.09;
(15)by the Company or any of its Subsidiaries in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Company and its Subsidiaries in connection with such plans;
(16)by the Company or any of its Subsidiaries, together with all other Investments pursuant to this clause (16), to repay, repurchase, or redeem New 2L Notes issued under the New 2L Notes Indenture, in an aggregate amount at the time of each such Investment not to exceed the Permitted Equity Proceeds Prepayment Amount;
(17)by the Company or any of its Subsidiaries in the ordinary course of business consisting of the licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons; provided that such licensing, subleasing, or contributions of intellectual property must either be (a) non-exclusive or (b) exclusive only within the granted territory;
(18)by the Company or any of its Subsidiaries consisting of cash deposits (including escrowed deposits) pursuant to binding commitments of the Company or its Subsidiaries in effect with respect to refinancings of Indebtedness otherwise permitted under this Indenture;
(19)by the Company or any of its Subsidiaries in prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business;
(20)by the Company or any of its Subsidiaries to the extent constituting Investments, transactions made pursuant to the terms of the China Joint Venture in an aggregate amount at the time of each such Investment not to exceed $100.0 million;
(21)by the Company or any of its Subsidiaries to the extent constituting Investments, transactions made pursuant to the terms of the Wincor Joint Venture in an aggregate amount at the time of each such Investment not to exceed $100.0 million; and
(22)by the Company or any of its Subsidiaries, in cash or in the form of Investments that do not constitute transfers of Collateral, together with all other Investments pursuant to this clause (22), in an aggregate amount outstanding (as reduced by the amount of capital returned from any such Permitted Investment (exclusive of items reflected in Consolidated Net Income), which reductions may not exceed in aggregate amount the amount originally transferred in connection with any Permitted Investment hereunder) at the time of each such Investment not to exceed $35.0 million.
“Permitted Liens” means, with respect to any Person:
(1)Liens securing (x) Indebtedness and other obligations permitted to be Incurred pursuant to Section 4.09(b)(2) and (y) any Refinancing Indebtedness in respect thereof (and any subsequently Incurred Refinancing Indebtedness in respect of any such Refinancing Indebtedness); provided, that the Liens incurred pursuant to this clause (1) shall rank equal to or junior to the Liens securing the Notes pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements (in the case of any Junior Liens, with the Notes being treated as senior priority obligations thereunder), as applicable, in all cases subject to the Lien priorities in any applicable Intercreditor Agreement;
(2)pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws, social security or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(3)Liens imposed by law, including carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens, Incurred in the ordinary course of business;
(4)Liens for taxes, assessments or other governmental charges or levies that are not yet overdue for more than 45 days or that are being contested in good faith by appropriate proceedings, provided that appropriate reserves required pursuant to GAAP have been made in respect thereof;
(5)Liens in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances or similar obligations (including standby letters of credit and completion guarantees) issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not constitute Indebtedness;
(6)encumbrances, ground leases, easements or reservations (including reservations in any original grant from any government of any water or mineral rights or interests therein) of, or rights of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that do not secure any monetary obligations and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(7)Liens securing Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(8)leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) that do not materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries and do not secure any Indebtedness;
(9)judgment Liens not giving rise to an Event of Default or that secure appeal or surety bonds related to such judgments;
(10)Liens for the purpose of securing the payment of all or a part of the purchase price of, or mortgage financings, purchase money obligations or other payments Incurred to finance assets or property (other than Capital Stock or other Investments) acquired, constructed, improved or leased in the ordinary course of business; provided that:
(r)the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Indenture and does not exceed the cost of the assets or property so acquired, constructed or improved; and
(s)such Liens are created within 180 days of construction, acquisition or improvement of such assets or property and do not encumber any other assets or property of the Company or any Subsidiary other than such assets or property and assets affixed or appurtenant thereto;
(11)Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off, revocation, refund, chargeback or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution; provided that:
(t)such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board; and
(u)such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution;
(12)rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions (i) in relation to the establishment, maintenance or administration of deposit accounts, securities accounts or arrangements relating to a Cash Management Agreement or (ii) in relation to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations Incurred in the ordinary course of business of the Company or any Subsidiary;
(13)Liens in favor of financial institutions against cash pooling arrangements or bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business and consistent with standard business practices in such foreign jurisdiction; provided that any such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or its Subsidiaries;
(14)Liens in favor of a commodity, brokerage or security intermediary who holds a commodity, brokerage or, as applicable, a security account on behalf of the Company or a Subsidiary provided such Lien encumbers only the related account and the property held therein and relates to the security for the activities associated with such account;
(15)Liens arising from Uniform Commercial Code or PPSA (or similar law of any foreign jurisdiction) financing statement filings or similar public filings, registrations or agreements in foreign jurisdiction regarding leases and consignment or bailee arrangements in the ordinary course of business and Liens securing liabilities in respect of indemnification obligations thereunder as long as each such Lien only encumbers the assets that are the subject of the related lease (or contained in such leasehold) or consignment or bailee, and other precautionary statements, filings or agreements;
(16)Liens existing on the Issue Date (other than Liens permitted under clause (1)) and Liens securing the Superpriority Credit Facility, the 2025 Credit Facility, the New 2L Notes, the 2025 Euro Notes and the 2023 Credit Facility and other secured obligations permitted to be Incurred under Section 4.09(b)(3), in each case subject to the Lien priorities in any applicable Intercreditor Agreement;
(17)Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however, that any such Lien may not extend to any other property owned by the Company or any Subsidiary;
(18)Liens on property at the time the Company or a Subsidiary acquired the property, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such acquisition; provided, further, however, that such Liens may not extend to any other property owned by the Company or any Subsidiary;
(19)deposits in the ordinary course of business to secure liability to insurance
carriers;
(20)options, put and call arrangements, rights of first refusal and similar rights
relating to Investments in joint ventures, partnerships and the like permitted to be made under this Indenture;
(21)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(22)Liens securing Indebtedness or other obligations of a Subsidiary owing to the Company or another Subsidiary;
(23)[reserved];
(24)Liens securing Refinancing Indebtedness Incurred to refinance as a whole or in part, Indebtedness that was previously so secured pursuant to clauses (10), (16), (17) and (18) and this clause (24) of this definition; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Indebtedness being refinanced; provided, further, that any such Liens shall rank equal to or junior to the Liens securing Indebtedness being refinanced or Incurred in compliance with this Indenture pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements (in the case of any Junior Liens, with any ABL Indebtedness and the Notes being treated as senior priority obligations thereunder), as applicable, in all cases subject to the Lien priorities in any applicable Intercreditor Agreement;
(25)any interest or title of a lessor under any Capitalized Lease Obligation or operating lease;
(26)Liens in favor of the Company or any Subsidiary;
(27)Liens in favor of customs and revenues authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(28)[reserved];
(29)[reserved];
(30)Liens on assets and property of Non-Guarantor Subsidiaries that are Foreign Subsidiaries that secure Indebtedness and other obligations of Non-Guarantor Subsidiaries that are Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed $10.0 million;
(31)[reserved];
(32)Liens on assets of the Company or any of its Subsidiaries securing Indebtedness and other Obligations and related Hedging Obligations and related banking services or cash management obligations that were Incurred pursuant to Section 4.09(b)(1); provided, that such Liens shall be junior to the Liens on the ABL Non-Priority Collateral securing the Notes shall be subject to the ABL Intercreditor Agreement;
(33)Liens on cash or Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(34)Liens on the collateral in respect of the 2025 Credit Facility (or any other applicable credit facility) securing obligations in respect of any Bi-lateral LC/WC Agreement permitted to be Incurred under Section 4.09(b)(22); and (35)Liens securing Indebtedness in an aggregate principal amount outstanding at any one time not to exceed $25.0 million; provided, that (a) the aggregate principal amount of any Liens Incurred hereunder securing any funded Indebtedness outstanding at any one time shall not exceed $10.0 million and (b) any such Liens securing any funded Indebtedness shall rank junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility, and the 2025 Notes pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements, as applicable.
“Person” means any individual, corporation, limited liability company, unlimited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Polish Collateral Agreements” means the collateral agreements governed by Polish law set forth on Appendix C hereof.
“Polish Collateral Documents” means the Polish Collateral Agreements and each mortgage (hipoteka), assignment (cesja), transfer of title by way of security (przewłaszczenie na zabezpieczenie), pledge (zastawy), suretyship (poręczenie), guarantee (gwarancja), letter of credit (akredytywa), promissory note (weksel własny), bill of exchange (weksel trasowany), right of set-off (prawo potrącenia), title retention (prawo zatrzymania), right of first refusal (prawo pierwokupu, prawo
pierwszeństwa), power of attorney by way of security (pełnomocnictwo na zabezpieczenie), accession to debt (przystąpienie do długu), submission to execution (poddanie się egzekucji) or any other agreement, security interest, encumbrance or arrangement having the effect of security or granting a security or giving security or preferential ranking to a creditor, as applicable, governed by Polish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Polish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Polish Guarantor” means any Guarantor organized or incorporated in Poland. “PPSA” means the Personal Property Security Act (Ontario), including the regulations
and Minister’s orders thereto, provided that if perfection or the effect of perfection or non-perfection or the priority of any Lien created under the Collateral Documents on the Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in a jurisdiction in Canada other than the Province of Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including the Civil Code of Quebec) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Preferred Stock,” as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distributions of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.
“Priority Secured Indebtedness” means the Obligations under each of the ABL Facility and the Superpriority Credit Facility, in each case, solely to the extent secured by a Lien on any part of the Collateral, which Lien is senior in priority to the Lien securing the Notes or the Note Guarantees on such part of the Collateral.
“Pro Forma Test Conditions” means, if on the date of a transaction or series of transactions and after giving effect thereto on a pro forma basis, (1) the Consolidated Coverage Ratio for the Company and its Subsidiaries is at least 2.00 to 1.00 and (2) no Default or Event of Default will have occurred or be continuing or would occur as a consequence of Incurring any Indebtedness in connection with entering into such transaction(s).
“Purchased Entities” means Wincor Nixdorf and its Subsidiaries.
“Rating Agency” means each of S&P and Moody’s, or, if S&P or Moody’s or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody’s or both, as the case may be.
“Record Date” for the interest payable on any applicable Interest Payment Date means the January 1 or July 1 (whether or not a Business Day) immediately preceding such Interest Payment Date.
“Refinancing Indebtedness” means Indebtedness that is Incurred in exchange or replacement for, or to refund, refinance, replace, exchange, renew, repay, prepay, purchase, redeem defease, retire or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” “refinanced” and “refinancing” shall each have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including additional Indebtedness Incurred to pay premiums (including tender premiums), defeasance costs, accrued interest and fees and expenses (including fees and expenses relating to the Incurrence of such Refinancing
Indebtedness) in connection with any such refinancing) including Indebtedness that refinances Refinancing Indebtedness or Incurred in connection with a repurchase, redemption or similar transaction, whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case including by exchange offers and private exchanges; provided, however, that:
(1)(a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity later than the Stated Maturity of the Notes;
(2)the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced;
(3)such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay premiums required by the instruments governing such existing Indebtedness or tender premiums, defeasance costs, accrued interest and fees and expenses in connection with any such refinancing);
(4)if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(5)if the Indebtedness being refinanced is secured, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being refinanced (and, if the Indebtedness being refinanced is unsecured, the Refinancing Indebtedness Incurred in respect of such Indebtedness may not be secured with any Liens);
(6)Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Company or a Guarantor; and
(7)Refinancing Indebtedness shall not be Guaranteed or secured by additional guarantors or collateral, respectively, relative to the refinanced Indebtedness.
“Released Domestic Collateral” means the ABL Priority Domestic Collateral and the Non-ABL Domestic Released Collateral.
“Required Account” means (A) all deposit accounts or securities accounts of the Domestic Note Parties and the Canadian Note Parties, excluding any Foreign Subsidiary (other than any Subsidiaries incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof), other than (i) accounts having a de minimis balance; provided that the aggregate balance in all accounts excluded by this de minimis threshold shall not exceed $2,500,000 at any time, (ii) payroll, disbursement and other fiduciary accounts, (iii) zero balance disbursement account, (iv) other trust, escrow, customs and fiduciary accounts, (v) cash collateral accounts solely holding cash collateral upon which Liens permitted by Section 4.10 exist and (vi) tax accounts, including, without limitation, sales tax accounts and (B) all deposit accounts and securities accounts that are subject to control agreements in favor of the ABL Collateral Agent.
“Required Superpriority Lenders” has the meaning assigned to it in the Superpriority Credit Facility.
“Required Noteholders” means Holders of a majority in principal amount of the Notes
then outstanding.
“Requirement of Law” means as to any Person, the certificate of incorporation and by- laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other governmental authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Investment” means any Investment other than a Permitted Investment. “S&P” means Standard & Poor’s Ratings Services or any successor to its rating agency business.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness of the Company or any of its
Subsidiaries secured by a Lien.
“Secured Parties” means the Trustee, the Notes Collateral Agent, the Holders and each other Person who is owed any portion of the Obligations under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Security Agreement” means the New York law governed security agreement among the Company, the other Guarantors and the Notes Collateral Agent in form and substance reasonably satisfactory to the Notes Collateral Agent.
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Similar Business” means any business similar in nature to any business conducted or proposed to be conducted by the Company and its Subsidiaries on the Issue Date or any business that is reasonably related, complementary, incidental or ancillary thereto or a reasonable extension, development or expansion of, the business conducted by the Company and its Subsidiaries on the Issue Date, in each case, as determined in good faith by the Company.
“Spanish Collateral Agreements” means the collateral agreements governed by Spanish law set forth on Appendix C hereof.
“Spanish Collateral Documents” means the Spanish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Spanish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations which may be entered into from time to time for the benefit of all the Secured Parties identified therein; provided that each Spanish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Specified Foreign Subsidiary” means each Subsidiary domiciled or organized in a Specified Jurisdiction.
“Specified Intercompany Claims” means collectively, (i) that certain intercompany claim owed by Diebold Germany to the Company (the amount of which, as of the Issue Date, is approximately
€656,000,000.00) and (ii) that certain intercompany claim owed by Diebold Germany to the Dutch Issuer Guarantor (the amount of which, as of the Issue Date, is approximately €343,000,000.00).
“Specified Jurisdiction” means any of Belgium, Canada, France, Germany, Italy, the Netherlands, Poland, Spain, Sweden and England and Wales.
“Stated Maturity” means, with respect to any security, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but not including any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Stub Obligations” means any 2024 Notes or Obligations under the 2023 Credit Facility. “Subordinated Obligation” means any Indebtedness of the Company (whether
outstanding on the Issue Date or thereafter Incurred) that is subordinated or junior in right of payment to the Notes pursuant to its terms.
“Subsidiary” of any Person means (1) any corporation, unlimited liability company, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or Persons performing similar functions) or (2) any partnership, joint venture limited liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is, in the case of clauses (1) and (2), at the time owned or controlled, directly or indirectly, by
(a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
“Superpriority Credit Facility” means that certain credit agreement, to be dated on or around the Issue Date, among Diebold Germany, the guarantors parties thereto from time to time, the Superpriority Credit Facility Administrative Agent, the Superpriority Credit Facility Collateral Agent and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“Superpriority Credit Facility Administrative Agent” means GLAS USA LLC in its capacity as the administrative agent under the Superpriority Credit Facility, or any successor representative acting in such capacity.
“Superpriority Credit Facility Collateral Agent” means GLAS Americas LLC in its capacity as the collateral agent under the Superpriority Credit Facility, or any successor representative acting in such capacity.
“Superpriority Credit Facility Obligations” means the “Obligations” as defined in the Superpriority Credit Facility.
“Swedish Collateral Agreements” means the collateral agreements governed by Swedish law set forth on Appendix C hereof.
“Swedish Collateral Documents” means the Swedish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Swedish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Swedish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Transaction Support Agreement” means that certain transaction support agreement, dated as of October 20, 2022, by and among the Company, certain of its Subsidiaries and certain holders of its existing Indebtedness (together with all exhibits, annexes and schedules thereto, and as amended, restated, supplemented or replaced, in whole or in part, from time to time).
“Transfer Restricted Notes” means Definitive Notes and any other Notes that bear or are required to bear the Restricted Notes Legend.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended. “Trustee” means U.S. Bank Trust Company, National Association, as trustee, until a
successor, if any, replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.
“United States” means the United States of America.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors, managers or trustees, as applicable, of such Person.
“Wholly Owned Subsidiary” means a Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares or a de minimis amount of shares held by Affiliates) is owned by the Company or another Wholly Owned Subsidiary regardless of Affiliate ownership status.
“Wincor Joint Venture” means any single joint venture that may be entered into by one or more of the Purchased Entities.
“Wincor Nixdorf” means Wincor Nixdorf Aktiengesellschaft. “Wincor Nixdorf Shares” means the Capital Stock of Wincor Nixdorf.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
“2024 Exchange Offer” ........................................................................................... | 4.18(a) |
“Additional Amounts” ............................................................................................. | 4.19(a) |
“Affiliate Transaction” ............................................................................................. | |
“Agent Members” ..................................................................................................... | 2.1(c) of Appendix A |
“Applicable Event” .................................................................................................. | 6(b) of Appendix B |
“Applicable Procedures” ........................................................................................ | 1.1(a) of Appendix A |
“Asset Disposition Offer” ........................................................................................ | 4.16(c) |
“Asset Disposition Offer Amount” ........................................................................... | |
“Asset Disposition Offer Period” ............................................................................. | |
“Asset Disposition Proceeds” ................................................................................. | 4.16(b) |
“Asset Disposition Purchase Date” ......................................................................... | |
“Auditor’s Determination” ...................................................................................... | 10.02(a) |
“Authentication Order” ............................................................................................ | |
“balance sheet date” ............................................................................................... | 1.01 |
“Bondholder Call” ................................................................................................... | 4.06(c) |
“Carryover Amount” ................................................................................................ | 4.08(b)(7) |
“Capital Impairment” ............................................................................................. | 10.02(a) |
“Change of Control Offer” ...................................................................................... | 4.15(a) |
“Change of Control Payment” ................................................................................. | |
“Change of Control Payment Date” ........................................................................ | |
“Chargor” ............................................................................................................... | 6(e)(ii) of Appendix B |
“Clearstream” ......................................................................................................... | 1.1(a) of Appendix A |
“Corresponding Debt” ............................................................................................ | 13.20(b) |
“Covenant Defeasance” ........................................................................................... | 8.03(a) |
“Definitive Notes Legend” ....................................................................................... | 2.2(e)(i) of Appendix A |
“Distribution Compliance Period” .......................................................................... | 1.1(a) of Appendix A |
“Enforcement of Claims” ........................................................................................ | 10.02(a) |
“ERISA Legend”....................................................................................................... | 2.2(e)(i) of Appendix A |
“Euroclear” .............................................................................................................. | 1.1(a) of Appendix A |
“Event of Default” .................................................................................................... | 6.01(a) |
“Excess Proceeds” ................................................................................................... | |
“Exchange Notes” ................................................................................................... | Recitals |
“Expiration Date” .................................................................................................... | 1.05(j) |
“FATCA” ................................................................................................................. | 4.19(b) |
“Foreign Guarantor Jurisdiction” .......................................................................... | 4(a) of Appendix B |
“Foreign Note Party” .............................................................................................. | 1(a) of Appendix B |
“Global Note” .......................................................................................................... | 2.1(b) of Appendix A |
“Global Notes Legend” ............................................................................................ | 2.2(e)(i) of Appendix A |
“Group” ................................................................................................................... | 13(a) of Appendix B |
“Guaranteed Obligor” ............................................................................................ | 10.02(b)(ii)(2) |
“Guaranteed Obligations” ...................................................................................... | 10.01(a) |
| | | | | |
“IAI” ........................................................................................................................ | 1.1(a) of Appendix A |
“IAI Global Note” ................................................................................................... | 2.1(b) of Appendix A |
“IAI Notes” .............................................................................................................. | 2.1(a) of Appendix A |
“Indenture Currency” .............................................................................................. | 13.21(b) |
“Italian Usury Law”................................................................................................. | 2.15(a) |
“Judgment Currency” .............................................................................................. | 13.21(b) |
| | | | | |
| Term | Defined in Section |
“Legal Defeasance” ................................................................................................. | 8.02(a) |
“Management Notification” .................................................................................... | 10.02(a) |
“Non-Cooperative Jurisdiction” ............................................................................. | 4.19(a)(8) |
“Non-U.S. Taxing Jurisdiction” .............................................................................. | 4.19(b) |
“Note Register” ........................................................................................................ | 2.03(a) |
“OID Legend” ......................................................................................................... | 2.2(e)(i) of Appendix A |
“Overriding Principle” ........................................................................................... | 4(b) of Appendix B |
“Original Indenture” ............................................................................................... | Recitals |
“Parallel Debt” ....................................................................................................... | 13.20(a) |
“Parallel Debt Undertaking” .................................................................................. | 13.20(a) |
“Paying Agent” ........................................................................................................ | 2.03(a) |
“PDF” ..................................................................................................................... | 13.16 |
“Premises” .............................................................................................................. | 11.06(a) |
“Proceeds Trigger Date” ........................................................................................ | 4.16(b) |
“QIB” ...................................................................................................................... | 1.1(a) of Appendix A |
“Registered Exchange Offer” .................................................................................. | 4.18(a) |
“Registrar” ............................................................................................................... | 2.03(a) |
“Regulation S” ......................................................................................................... | 1.1(a) of Appendix A |
“Regulation S Global Note” .................................................................................... | 2.1(b) of Appendix A |
“Regulation S Notes” .............................................................................................. | 2.1(a) of Appendix A |
“Reinstatement Date” .............................................................................................. | 4.17(b) |
“Relevant Asset” ...................................................................................................... | 10.02(a) |
“Required Holder Consent” .................................................................................... | 6(e)(ii) of Appendix B |
“Restricted Notes Legend” ....................................................................................... | 2.2(e) of Appendix A |
“Restricted Payment” ............................................................................................... | |
“Rule 144” ............................................................................................................... | 1.1(a) of Appendix A |
“Rule 144A” ............................................................................................................ | 1.1(a) of Appendix A |
“Rule 144A Global Note” ........................................................................................ | 2.1(b) of Appendix A |
“Rule 144A Notes” .................................................................................................. | 2.1(a) of Appendix A |
“Spain” ..................................................................................................................... | 1.08(b)(i) |
“Spanish Civil Code” ............................................................................................... | 1.08(b)(ii) |
“Spanish Civil Procedural Law”.............................................................................. | 1.08(b)(iii) |
“Spanish Commercial Code” ................................................................................... | 1.08(b)(iv) |
“Spanish Companies Law”....................................................................................... | 1.08(b)(v) |
“Spanish Guarantor” ............................................................................................... | 1.08(b)(vi) |
“Spanish Insolvency Law”........................................................................................ | 1.08(b)(vii) |
“Spanish Public Document”..................................................................................... | 1.08(b)(viii) |
“Suspended Covenants” .......................................................................................... | 4.17(a) |
“Suspension Date” .................................................................................................. | 4.17(a) |
“Suspension Period” ............................................................................................... | 4.17(b) |
“Taxes” .................................................................................................................... | 4.19(b) |
“United States”......................................................................................................... | 1.1(a) of Appendix A |
“Unrestricted Global Note” ..................................................................................... | 1.1(a) of Appendix A |
“U.S. person” .......................................................................................................... | 1.01 of Appendix A |
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
(1)
(2)an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3)“or” is not exclusive;
(4)words in the singular include the plural, and words in the plural include the singular;
(5)provisions apply to successive events and transactions;
(6)unless the context otherwise requires, any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;
(7)the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision;
(8)“including” means including without limitation;
(9)references to sections of, or rules under, the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(10)unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture; and
(11)in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Company may classify such transaction as it, in its sole discretion, determines.
Section 1.04 Acts of Holders.
(v)Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company and the Guarantors. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Company and the Guarantors, if made in the manner provided in this Section 1.04.
(w)The fact and date of the execution by any Person of any such instrument or writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof or (2) in any other manner deemed reasonably sufficient by the Trustee. Where such execution is by or on behalf
of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.
(x)The ownership of Notes shall be proved by the Note Register.
(y)Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Company or the Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.
(z)The Company may set a record date for purposes of determining the identity of Holders entitled to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, or to vote on or consent to any action authorized or permitted to be taken by Holders; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in clause (f) below. Unless otherwise specified, if not set by the Company prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or vote or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or vote. If any record date is set pursuant to this clause (e), the Holders on such record date, and only such Holders, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action (including revocation of any action), whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on such record date. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 13.02.
(aa)The Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section 6.01, (2) any declaration of acceleration referred to in Section 6.02, (3) any direction referred to in Section 6.05 or (4) any request to pursue a remedy as permitted in Section 6.06. If any record date is set pursuant to this paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on such record date. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company and to each Holder in the manner set forth in Section 13.02.
(ab)Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
(ac)Without limiting the generality of the foregoing, a Holder, including a Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in
writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Depositary’s standing instructions and customary practices.
(ad)The Company may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by a Depositary entitled under the procedures of such Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders; provided that if such a record date is fixed, only the beneficial owners of interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date.
(ae)With respect to any record date set pursuant to this Section 1.04, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Notes in the manner set forth in Section 13.02, on or prior to both the existing and the new Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.04, the party hereto which set such record date shall be deemed to have initially designated the 30th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this clause (j).
Section 1.05 Quebec Interpretive Provisions.
For purposes of the interpretation or construction of this Indenture pursuant to the laws of the Province of Quebec, for purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Collateral Document) and for all other purposes pursuant to which the interpretation or construction of any other Collateral Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, a “reservation of ownership”, “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the PPSA shall be deemed to include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs in favour of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”,
(p) “easement” shall be deemed to include “servitude”, (q) “priority” shall be deemed to include “prior
claim” or “rank”, as applicable, (r) “survey” shall be deemed to include “certificate of location and plan”,
(s) “fee simple title” and “fee title” shall be deemed to include “right of ownership”, (t) “foreclosure” shall be deemed to include “the exercise of a hypothecary right”, (u) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (v) “lease” for personal or movable property shall be deemed to include a “contract of leasing (crédit-bail)” and (x) “deposit account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Quebec.
Section 1.06 French Terms.
In this Indenture, where it relates to a French Guarantor:
(a)“gross negligence” means “faute lourde”;
(b)a “guarantee” means any type of “sûreté personnelle”;
(c)“merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code;
(d)“security interest” includes any type of security (sûreté réelle) and transfer by
(e)a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f)“trustee, fiduciary and fiduciary duty” has in each case the meaning given to such
term under any applicable law;
(g)“willful misconduct” means “dol”;
(h)a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code;
(i)a “suspension of payments,” a “moratorium of any indebtedness,” a “winding- up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code;
(j)a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(k)a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refer to, any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur” or similar officer; and
(l)a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
Section 1.07 Spanish Terms and Definitions.
(a)In this Indenture, where it relates to a Spanish Guarantor, a person incorporated or formed or having its center of main interests in Spain, or to Spanish law, a reference to:
(1)“administration” or “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including without limitation (i) a declaración de concurso necesario o voluntario, as well as any filing for voluntary insolvency (solicitud de inicio del procedimiento de concurso voluntario), the request of declaration of insolvency by a third party (solicitud de concurso por acreedores), a declaration of insolvency (auto de declaración de concurso); (ii) any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, and any petition to appoint a restructuring expert pursuant to articles 672 et seq.; and (iii) a judicial or out-of-court composition agreement (convenio judicial o extrajudicial con acreedores or transacción judicial o extrajudicial) or any filing for a workout homologation petition (solicitud de homologación de un plan de reestructuración). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law;
(2)“control” has the meaning stated under article 42 of the Spanish Commercial Code.
(3)“financial assistance” means (a) in respect to a Spanish Guarantor incorporated as a Sociedad Anónima, financial assistance under Article 150 of the Spanish Companies Law; and (b) in respect to a Spanish Guarantor incorporated as a Sociedad de Responsabilidad Limitada, financial assistance under Article 143 of the Spanish Companies Law;
(4)“winding up”, “liquidation” or “dissolution” includes, without limitation, disolución, liquidación or any other similar proceedings and shall be used to those circumstances as regulated under the laws of Spain from time to time;
(5)a “liquidator”, “receiver”, “administrative receiver”, “administrator” or “compulsory manager” includes, without limitation, mediador conrursal, administrador del concurso, administración concursal or a liquidador or any other person or entity performing the same or a similar function;
(6)a “composition” or “arrangement” or similar arrangement with any creditor includes, without limitation, a convenio de acreedores or plan de reestructuración to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under Title II or Title III of the Second Book of the Spanish Insolvency Law;
(7)a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem security right governed by Spanish law; and
(8)a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).
(b)In this Indenture, the following terms shall have the following definitions:
(9)“Spain” shall mean the Kingdom of Spain.
(10)“Spanish Civil Code” shall mean the Spanish Código Civil, as amended from time to time.
(11)“Spanish Civil Procedural Law” shall mean Law 1/2000 of 7 January (Ley de Enjuiciamiento Civil), as amended from time to time.
(12)“Spanish Commercial Code” shall mean the Spanish Commercial Code published by virtue of the Royal Decree of 22 August 1885 (Real decreto de 22 de agosto de 1885 por el que se publica el Código de Comercio), as amended from time to time.
(13)“Spanish Companies Law” shall mean the Royal Legislative Decree 1/2010, of 2 July, whereby the companies act is approved (Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital), as amended from time to time.
(14)“Spanish Guarantor” means any Guarantor incorporated under the laws
of Spain.
(15)“Spanish Insolvency Law” means the Spanish Royal Legislative Decree
1/2020 of 5 May 2020 (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal) approving the Spanish Recast Insolvency Law, as amended or superseded from time to time, and, in particular but not limited to, pursuant to the Spanish Law 16/2022, of 5 September, amending the consolidated text of the Spanish Insolvency Law (Ley 16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal).
(16)“Spanish Public Document” shall mean a Spanish law notarial deed (documento público), being either an escritura pública or a póliza o efecto intervenido por notario español.
Section 1.08 Dutch Terms
As used in this Indenture, where it relates to a Dutch Guarantor, a reference to: (i) organizational documents means the deed of incorporation (akte van oprichting), articles of association (statuten) and an extract of the Dutch Chamber of Commerce (Kamer van Koophandel); (ii) a necessary corporate or other organizational action where applicable includes without limitation: (A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and
(B) obtaining a positive or neutral advice, which, if conditional, contains conditions which in the opinion of the Trustee are acceptable and can reasonably be expected to be satisfied by a Dutch Guarantor without breaching the terms of this Indenture, from the competent works council(s); (iii) any Lien and any security interest includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (zakelijk recht) created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); (iv) a bankruptcy, insolvency, liquidation, winding up, or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (v) a moratorium includes (voorlopige) surseance van betaling and granted a moratorium includes (voorlopige) surseance verleend; (vi) a trustee, includes a curator and a liquidator includes a curator; (vii) an administrator includes a bewindvoerder, a beoogd bewinvoerder, a herstructureringsdeskundige or an observator; (viii) a receiver or an administrative receiver does not include a curator or bewindvoerder; (ix) any “procedure or step” taken in connection with insolvency proceedings includes the Dutch Guarantor having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax
Collection Act of the Netherlands (Invorderingswet 1990); (x) an attachment includes a beslag, (xi) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur); (xii) a reorganization includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet); (xiii) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur) and (xiv) a “subsidiary” includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code (Burgerlijk Wetboek). Where “the Netherlands” or “Dutch” is referred to it refers only to the European part of the Kingdom of the Netherlands and its laws respectively.
Section 1.09 Swedish Terms.
Notwithstanding and overriding any other provision of this Indenture and/or any exhibit or schedule thereto:
(a)any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent;
(b)for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Swedish Collateral Document, assign a proportionate part of the security interests granted under that Swedish Collateral Document together with a proportional part of the security interest in that Swedish Collateral Document;
(c)any security granted under a Swedish Collateral Document will be granted to the secured parties represented by the Notes Collateral Agent;
(d)a “compromise” or “composition” with any creditor includes (a) any write-down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (b) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”);
(e)a “receiver”, “trustee” or “liquidator” includes (a) ‘rekonstruktör’ under the Swedish Company Reorganisation Act, (b) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (c) ‘likvidator’ under the Swedish Companies Act;
(f)a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any ‘delning’ implemented in accordance with Chapter 24 of the Swedish Companies Act;
(g)a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a ‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act;
(h)“gross negligence” means ‘grov vårdslöshet’ under Swedish law;
(i)a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates;
(j)an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act;
(k)in relation to this Indenture, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the Swedish Companies Act;
Notwithstanding any other provisions in this Indenture, the release of any perfected Liens (or any Liens purported to be perfected) created by a Swedish Collateral Document (“Swedish Collateral”) will always be subject to the prior written consent of the Notes Collateral Agent (acting in its sole discretion but in accordance with the applicable Swedish Collateral Document and Note Document). Each Secured Party authorizes and directs the Notes Collateral Agent to release Swedish Collateral as provided in Section 11.07 of this Agreement (but in accordance with the applicable Swedish Collateral Document) without notification or further reference to the Secured Parties. This provision supersedes any conflicting provision in this Indenture.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms.
(a)Provisions relating to the Existing Notes, the Exchange Notes and any other Notes issued under this Indenture are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture. The Notes and the Trustee’s certificate of authentication shall each be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rules or agreements with national securities exchanges to which the Company or any Guarantor is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Company). Each Note shall be dated the date of its authentication. The Notes shall be in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Company, the Guarantors, the Trustee and the Notes Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Company pursuant to an Asset Disposition Offer as provided in Section 4.16 or a Change of Control Offer as provided in Section 4.15, and otherwise as not prohibited by this Indenture. The Notes shall not be redeemable, other than as provided in ARTICLE 3.
The Exchange Notes constitute Additional Notes. No Additional Notes other than the Exchange Notes issued on the Issue Date shall be issued under this Indenture.
Section 2.02 Execution and Authentication.
(a)At least one Officer shall execute the Notes on behalf of the Company by manual, electronic or facsimile signature. If an Officer whose signature is on a Note no longer holds that
office or is no longer authorized to represent the Issuer at the time a Note is authenticated, the Note shall nevertheless be valid.
(b)A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual, electronic or facsimile signature of an authorized signatory of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
(c)On the Issue Date, the Trustee shall, upon receipt of a written order of the Company signed by an Officer (an “Authentication Order”), authenticate and deliver the Exchange Notes.
(d)The Trustee may appoint an authenticating agent acceptable to the Company to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders, the Company or an Affiliate of the Company.
(e)The Trustee shall authenticate and make available for delivery upon a written order of the Company signed by one Officer of the Company (1) Exchange Notes for original issue on the Issue Date and (2) any Unrestricted Global Notes issued in exchange for any Existing Notes or Exchange Notes in accordance with this Indenture. Such order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Exchange Notes or Unrestricted Global Notes.
Section 2.03 Registrar and Paying Agent.
(a)The Company shall maintain at least one office or agency where Notes may be presented for registration of transfer or for exchange (“Registrar”) and at least one office or agency where Notes may be presented for payment (“Paying Agent”). The Registrar shall keep a register of the Notes (“Note Register”) and of their transfer and exchange. The Company may appoint one or more co- registrars and one or more additional paying agents. The term “Registrar” includes any co-registrar, and the term “Paying Agent” includes any additional paying agent. The Company may change any Paying Agent or Registrar without prior notice to any Holder. The Company shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Company fails to appoint or maintain another entity as Registrar or Paying Agent, the Trustee shall act as such. The Company or any of its Subsidiaries may act as Paying Agent or Registrar.
(b)The Company initially appoints DTC to act as Depositary with respect to the Global Notes. The Company initially appoints the Trustee to act as Paying Agent and Registrar for the Notes and to act as Custodian with respect to the Global Notes.
(c)Neither the Trustee nor any Agent shall have responsibility or liability for actions taken or not taken by the Depositary.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall, no later than 11:00 a.m. (New York City time) on each due date for the payment of principal, premium, if any, and interest on any of the Notes, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held in trust for the Holders entitled to the same, and (unless such Paying Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act. The Company shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such
Paying Agent for the payment of principal, premium, if any, and interest on the Notes, and shall notify the Trustee of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon payment over to the Trustee, and upon accounting for any funds disbursed, a Paying Agent shall have no further liability for the money. If the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Company, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders. If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.
Section 2.06 Transfer and Exchange.
(a)The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with Appendix A.
(b)To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request.
(c)No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07), but the Holders shall be required to pay any transfer tax or similar governmental charge payable in connection therewith (other than any transfer taxes or similar governmental charges payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.15, 4.16 or 9.05).
(d)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(e)Neither the Company nor the Registrar shall be required (1) to issue, to register the transfer of or to exchange any Note during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (2) to register the transfer of or to exchange any Note so selected for redemption, or tendered for repurchase (and not withdrawn) in connection with a Change of Control Offer or an Asset Disposition Offer, in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part or (3) to register the transfer of or to exchange any Note between a Record Date and the next succeeding Interest Payment Date.
(f)Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Company may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and (subject to the Record Date provisions of the Notes) interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(g)Upon surrender for registration of transfer of any Note at the office or agency of the Company designated pursuant to Section 4.02, the Company shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(h)At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the replacement Global Notes or Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Appendix A so long as the requirements of this Indenture are satisfied.
(i)All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by mail or by facsimile or electronic transmission.
Section 2.07 Replacement Notes.
(a)If a mutilated Note is surrendered to the Trustee or if a Holder claims that its Note has been lost, destroyed or wrongfully taken and the Trustee receives evidence to its satisfaction of the ownership and loss, destruction or theft of such Note, the Company shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s reasonable requirements are otherwise met. If required by the Trustee or the Company, an indemnity bond must be provided by the Holder that is sufficient in the judgment of the Trustee and the Company to protect the Company, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Company may charge the Holder for the expenses of the Company and the Trustee (including reasonable respective fees and expenses of counsel) in replacing a Note. Every replacement Note is a contractual obligation of the Company and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Notwithstanding the foregoing provisions of this Section 2.07(a), in case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note. Upon the issuance of any replacement Note under this Section 2.07, the Company may require the amount of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the reasonable fees and expenses of counsel and the Trustee) in connection therewith.
(b)The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes. Section 2.08 Outstanding Notes.
(a)The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.07, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, those described in this Section 2.08 as not outstanding and those that are subject to Legal Defeasance or Covenant Defeasance as provided in ARTICLE 8. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Company or an Affiliate of the Company holds the Note.
(b)If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code in effect in the State of New York.
(c)If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue from and after the date of such payment.
(d)If a Paying Agent (other than the Company, a Subsidiary or an Affiliate of any thereof) holds, on the maturity date, any redemption date or any date of purchase pursuant to an Offer to Purchase, money sufficient to pay Notes payable or to be redeemed or purchased on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the requisite principal amount of Notes have concurred in any direction, waiver or consent, Notes beneficially owned by the Company, or by any Affiliate of the Company, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in actually relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Company or any obligor upon the Notes or any Affiliate of the Company or of such other obligor.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Company considers appropriate for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Company shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes. Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act). Evidence of the disposal of all cancelled Notes shall, upon the written request of the Company, be delivered to the Company. The Company may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
(a)If the Company defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate
provided in the Notes and in Section 4.01. The Company shall notify the Trustee in writing (which notice may be electronic) of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Company of such special record date. At least 15 days before the special record date, the Company (or, upon the written request of the Company, the Trustee in the name and at the expense of the Company) shall send, mail or deliver by electronic transmission in accordance with the Applicable Procedures, or cause to be sent, mailed or delivered by electronic transmission in accordance with the Applicable Procedures to each Holder a notice that states the special record date, the related payment date and the amount of such interest to be paid. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine the defaulted interest, or with respect to the nature, extent or calculation of the amount of defaulted interest owed, or with respect to the method employed in such calculation of the defaulted interest.
(b)Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue interest, which were carried by such other Note.
Section 2.13 CUSIP and ISIN Numbers.
The Company in issuing the Notes may use CUSIP or ISIN numbers (if then generally in use) and, if so, the Trustee shall use CUSIP or ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption or exchange or in Offers to Purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange or Offer to Purchase shall not be affected by any defect in or omission of such numbers. The Company shall promptly notify the Trustee in writing (which notice may be electronic) of any change in the CUSIP or ISIN numbers.
Section 2.14 Italian Usury Law
(a)The rate of interest applicable to each issuance of the Notes guaranteed by the Italian Guarantor under this Indenture (including the relevant component of any applicable fee and expense) determined as of the date of execution of this Indenture is considered in good faith by each of the parties to be in compliance with Law No. 108 of 7 March 1996 as amended (the "Italian Usury Law")
(b)In any event, if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest applicable to any issuance of the Notes guaranteed by the Italian Guarantor or the default rate of interest (if due at such time from the Italian Guarantor) at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the obligations of the Italian Guarantor, as guarantor and payor of the relevant interest rate or default rate, shall immediately be reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Notes pursuant to Section 3.07, it shall furnish to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03 (unless a shorter notice shall be agreed to by the Trustee) but not more than 60 days before a redemption date, an Officer’s Certificate (which may be withdrawn prior to the date such notice of redemption is given) setting forth (1) the paragraph or subparagraph of such Note or Section of this Indenture pursuant to which the redemption shall occur, (2) the redemption date, (3) the principal amount of the Notes to be redeemed and (4) the redemption price, if then ascertainable.
Notwithstanding the notice requirements in Section 3.03, if the redemption price is not known at the time such notice is to be given, the actual redemption price, calculated as described in the terms of the Notes to be redeemed, shall be set forth in an Officer’s Certificate of the Company delivered to the Trustee no later than two Business Days prior to the redemption date. Section 3.02 Selection of Notes to Be Redeemed or Purchased.
(a)If less than all of the Notes are to be redeemed pursuant to Section 3.07 or purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed or purchased (1) if the Notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the Notes are listed or (2) if the Notes are not so listed, on a pro rata basis, by lot in accordance with the Applicable Procedures or by such other method as the Trustee in its sole discretion deems to be fair and appropriate. In the event of partial redemption or purchase by lot, the particular Notes to be redeemed or purchased shall be selected, unless otherwise provided herein, not less than 15 nor more than 60 days prior to the redemption date by the Trustee from the then outstanding Notes not previously called for redemption or purchase.
(b)The Trustee shall promptly notify the Company in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of $2,000 and integral multiples of $1,000 in excess thereof; provided that no Notes of $2,000 in principal amount or less shall be redeemed or purchased in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
(c)After the redemption date or purchase date, upon surrender of a Note to be redeemed or purchased in part only, a new Note or Notes in principal amount equal to the unredeemed or unpurchased portion of the original Note, representing the same Indebtedness to the extent not redeemed or not purchased, shall be issued in the name of the Holder upon cancellation of the original Note (or appropriate book entries shall be made to reflect such partial redemption).
Section 3.03 Notice of Redemption.
(a)Subject to Section 3.10, the Company shall send or deliver by electronic transmission in accordance with the Applicable Procedures, or cause to be sent (or delivered by electronic transmission in accordance with the Applicable Procedures) notices of redemption of Notes not less than 15 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed pursuant to this ARTICLE 3 at such Holder’s registered address or otherwise in accordance
with the Applicable Procedures, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with ARTICLE 8 or ARTICLE 12. Except as set forth in Section 3.07(f), notices of redemption may not be conditional. Notices to the Trustee may be given by email in PDF format.
(b)The notice shall identify the Notes to be redeemed (including CUSIP and ISIN number, if applicable) and shall state:
(17)the redemption date;
(18)the redemption price, including the portion thereof representing any accrued and unpaid interest; provided that in connection with a redemption under Section 3.07(d), the notice need not set forth the redemption price but only the manner of calculation;
(19)if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed;
(20)the name and address of the Paying Agent;
(21)that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(22)that, unless the Company defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the redemption date;
(23)the paragraph or subparagraph of the Notes or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(24)that no representation is made as to the correctness or accuracy of the CUSIP or ISIN number, if any, listed in such notice or printed on the Notes; and
(25)if applicable, any condition to such redemption.
(c)At the Company’s request, the Trustee shall give the notice of redemption in the Company’s name and at the Company’s expense; provided that the Company shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(b).
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is sent in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(f)). The notice, if sent in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
(a)No later than 11:00 a.m. (New York City time) on the redemption or purchase date (or such later time as such date to which the Trustee may reasonably agree), the Company shall deposit with the Trustee or with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Holder of record on such Record Date. The Paying Agent shall promptly distribute to each Holder whose Notes are to be redeemed or repurchased the applicable redemption or purchase price thereof and accrued and unpaid interest thereon. The Trustee or the Paying Agent shall promptly return to the Company any money deposited with the Trustee or the Paying Agent by the Company in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
(b)If the Company complies with the provisions of Section 3.05(a), on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase whether or not such Notes are presented for payment, and the Holders of such Notes shall have no further rights with respect to such Notes except the right to receive such payment of the redemption price and accrued and unpaid interest, if any, on such Notes upon surrender of such Notes. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date in respect of such Note will be paid on such redemption or purchase date to the Person in whose name such Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders whose Notes shall be subject to redemption by the Company. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Company to comply with Section 3.05(a), interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and, to the extent lawful, on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender and cancellation of a Note that is redeemed or purchased in part, the Company shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate and mail to the Holder (or cause to be transferred by book entry) at the expense of the Company a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same Indebtedness to the extent not redeemed or purchased; provided that each new Note shall be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. It is understood that, notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
Section 3.07 Optional Redemption.
(a)[reserved].
(b)[reserved].
(c)[reserved].
(d)The Company may, on any one or more occasions, redeem the Notes, in whole or in part, upon notice pursuant to Section 3.03 at the redemption prices (expressed as a percentage of
principal amount of the Notes to be redeemed) set forth below plus accrued and unpaid interest on the Notes, if any, to, but excluding, the applicable date of redemption, if redeemed during the twelve-month period beginning on July 15 of each of the years indicated below:
| | | | | | | | |
| Year | | Percentage |
2022 .................................................................................. | | 104.688% |
2023 .................................................................................. | | 102.344% |
2024 and thereafter ........................................................... | | 100.000% |
(f)Any redemption notice in connection with this Section 3.07 may, at the Company’s discretion, be subject to one or more conditions precedent, including completion of an Equity Offering or other corporate transaction. If such redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed.
(g)The Company may acquire Notes by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.
Section 3.08 Mandatory Redemption.
The Company will not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09 [Reserved].
Section 3.10 Offers to Repurchase by Application of Excess Proceeds.
(a)In the event that, pursuant to Section 4.16, the Company is required to commence an Asset Disposition Offer, the Company will follow the procedures specified below.
(b)The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset Disposition Offer Period (the “Asset Disposition Purchase Date”), the Company will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, any applicable Priority Secured Indebtedness and other Pari Passu Secured Indebtedness (on a pro rata basis, if applicable) required to be offered for purchase pursuant to Section 4.16 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount of Notes has been so validly tendered, all Notes and Priority Secured Indebtedness and Pari Passu Secured Indebtedness validly tendered in response to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments on the Notes are made.
(c)If the Asset Disposition Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest to, but excluding, the Asset Disposition Purchase Date shall be paid, in cash, on the Asset Disposition Purchase Date to the Person in whose name a Note is registered at the close of business on such Record Date. Unless the Company
defaults in the payment of the purchase price for Notes accepted by the Company for purchase pursuant to this Section 3.10, interest will cease to accrue on the Notes or portions thereof purchased on the Asset Disposition Purchase Date. (d)Upon the commencement of an Asset Disposition Offer, the Company shall send a notice to each of the Holders or otherwise deliver such notice in accordance with the Applicable Procedures, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Disposition Offer. The Asset Disposition Offer shall be made to all Holders and, if required, all holders of Pari Passu Secured Indebtedness. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(26)that an Asset Disposition Offer is being made pursuant to this Section 3.10 and Section 4.16 and the expiration time of the Asset Disposition Offer Period;
(27)the Asset Disposition Offer Amount, the purchase price, including the portion thereof representing any accrued and unpaid interest, and the Asset Disposition Purchase Date;
(28)that Notes must be tendered in integral multiples of $1,000, and any Note not properly tendered will remain outstanding and will continue to accrue interest;
(29)that, unless the Company defaults in making the payment, any Note accepted for payment pursuant to the Asset Disposition Offer will cease to accrue interest on and after the Asset Disposition Purchase Date;
(30)that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to such Note completed, the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Disposition Purchase Date;
(31)that Holders shall be entitled to withdraw their election if the Company, the Depositary or the Paying Agent, as the case may be, receives at the address specified in the notice, not later than the expiration of the Asset Disposition Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;
(32)that, if the aggregate principal amount of Notes and Pari Passu Secured Indebtedness surrendered by the holders thereof exceeds the Asset Disposition Offer Amount, then the Notes and such Pari Passu Secured Indebtedness will be purchased on a pro rata basis based on the aggregate accreted value or principal amount, as applicable, of the Notes or such Pari Passu Secured Indebtedness tendered and the selection of the Notes for purchase shall be made by the Trustee by such method as the Trustee in its sole discretion shall deem to be fair and appropriate, although no Note having a principal amount of $2,000 shall be purchased in part;
(33)that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) (the unpurchased portion of the Notes must be equal to $2,000 and integral multiples of $1,000 in excess thereof);
(34)the other procedures, as determined by the Company, consistent with this Section 3.10 that a Holder must follow; and
(35)the CUSIP and ISIN numbers of the Notes.
(e)On or before the Asset Disposition Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary or as otherwise provided in Section 4.16(c), the Asset Disposition Offer Amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or, if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) so tendered, in the case of the Notes in integral multiples of $1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000. The Company will deliver, or cause to be delivered, to the Trustee the Notes so accepted and to the Trustee and the Paying Agent an Officer’s Certificate stating the aggregate principal amount of Notes so accepted and that such Notes were accepted for payment by the Company in accordance with the terms of this Section 3.10. In addition, the Company will deliver all certificates and instruments required, if any, by the agreements governing the Priority Secured Indebtedness and Pari Passu Secured Indebtedness, as applicable.
(f)The Paying Agent or the Company, as the case may be, will promptly, but in no event later than five Business Days after termination of the Asset Disposition Offer Period, mail (or otherwise send in accordance with the Applicable Procedures) to each tendering Holder or holder or lender of Priority Secured Indebtedness or Pari Passu Secured Indebtedness, as the case may be, an amount equal to the purchase price of the Notes or Priority Secured Indebtedness or Pari Passu Secured Indebtedness so validly tendered and not validly withdrawn by such holder or lender, as the case may be, and accepted by the Company for purchase, and the Company will promptly issue a new Note, and the Trustee, upon delivery of an Authentication Order from the Company, will authenticate and mail (or otherwise send in accordance with the Applicable Procedures) (or cause to be transferred by book entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate shall be required for the Trustee to authenticate and mail or send such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof. In addition, the Company will take any and all other actions required by the agreements governing the Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable). Any Note not so accepted will be promptly mailed or sent by the Company to the Holder thereof.
(g)The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Company will pay, or cause to be paid, the principal, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Company or a Subsidiary, holds as of 11:00 a.m. (New York City) time, on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay the principal, premium, if any, and interest then due.
(b)The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue principal and premium, if any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post- petition interest in any proceeding under any Bankruptcy Laws) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company shall maintain an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar or co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company and the Guarantors in respect of the Notes and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate additional offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Company shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance with Section 2.03.
Section 4.03 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments and governmental levies except (a) such as are being contested in good faith and by appropriate negotiations or proceedings and for which adequate reserves have been made in accordance with GAAP or (b) where the failure to effect such payment is not adverse in any material respect to the Holders.
Section 4.04 Stay, Extension and Usury Laws.
The Company and each Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each Guarantor
(to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenant that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.05 Corporate Existence.
Subject to ARTICLE 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence and the corporate, partnership, limited liability company or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary and (b) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership, limited liability company, unlimited liability company or other existence of any of its Subsidiaries, if the Company in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole; provided further that this Section 4.05 does not prohibit any transaction otherwise permitted by Section 4.16 (or that does not constitute an Asset Disposition).
Section 4.06 Reports and Other Information.
(a)Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SEC, the Company will file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company (or if the Company is not then subject to the reporting requirements of the Exchange Act, then deliver to the Trustee for delivery to the Holders in lieu of filing with the SEC) within the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations) (in either case, including any extension as would be permitted by Rule 12b-25 under the Exchange Act):
(36)all financial information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(37)all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section; and
(38)all current reports that would be required to be filed with the SEC on Form 8-K, or any successor or comparable form, if the Company were required to file such reports,
in each case in a manner that complies in all material respects with the requirements specified in such form provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred.
(b)Notwithstanding Section 4.06(a), (i) the Company will not be obligated to file such reports with the SEC if the SEC does not permit such filing, so long as the Company provides such
information to the Trustee and the Holders and makes available such information to prospective purchasers of the Notes, in each case at the Company’s expense and by the applicable date the Company would be required to file such information pursuant to Section 4.06(a) and (ii) the Company will not be obligated to provide to the Trustee or the Holders or make available to prospective purchasers of the Notes any materials for which it has sought and received confidential treatment by the SEC. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company will furnish to Holders and to securities analysts and prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in Sections 4.06(a) and 4.06(b) may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders and prospective purchasers of the Notes; provided that the Trustee shall have no responsibility to determine if such posting has occurred. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(c)In addition, no later than five Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or (2), the Company shall also hold live quarterly conference calls with the opportunity to ask questions of management for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions (any such call, a “Bondholder Call”); provided that, so long as the Company holds quarterly conference calls for investors of its Common Stock, it shall not be required to hold separate or additional Bondholder Calls. If the Company holds any Bondholder Call, no fewer than five calendar days prior to the date such Bondholder Call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such Bondholder Call for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions, which press release shall contain the time and the date of such Bondholder Call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such Bondholder Call.
Section 4.07 Compliance Certificate.
(a)The Company and each Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Original Issue Date, a certificate from its principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company and each Guarantor have kept, observed, performed and fulfilled their obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Company and each Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Company and each Guarantor are taking or propose to take with respect thereto).
(b)When any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Company will promptly (which
shall be within ten Business Days following the date on which the Company becomes aware of such Default, receives notice of such Default or becomes aware of such action, as applicable) send to the Trustee an Officer’s Certificate specifying such event, its status and what action the Company is taking or proposes to take with respect thereof.
Section 4.08 Limitation on Restricted Payments.
(a)The Company will not, and will not permit any of its Subsidiaries, directly or
indirectly, to:
(39)declare or pay any dividend or make any distribution (whether made in
cash, securities or other property) on or in respect of its or any of its Subsidiaries’ Capital Stock (including any payment in connection with any merger, amalgamation or consolidation involving the Company or any of its Subsidiaries) other than:
(A)dividends or distributions payable solely in Capital Stock of the Company (other than Disqualified Stock); and
(B)dividends or distributions by a Subsidiary to the Company or another Subsidiary (including by a Subsidiary that is not a Wholly Owned Subsidiary); provided that with respect to a dividend or distribution to either (a)a Subsidiary, the Capital Stock of which is not 100% pledged as Collateral, or (b) a Non-Guarantor Subsidiary, such transferee Subsidiary shall receive no more than such Subsidiary’s ratable share of such dividend or distribution;
(40)purchase, redeem, retire or otherwise acquire for value, including in connection with any merger, amalgamation or consolidation, any Capital Stock of the Company or any direct or indirect parent of the Company held by Persons other than the Company or a Subsidiary;
(41)make any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled repayment, scheduled sinking fund payment or scheduled maturity, any Subordinated Obligations or Guarantor Subordinated Obligations, other than:
(A)Indebtedness of the Company owing to and held by any Guarantor or Indebtedness of a Guarantor owing to and held by the Company or any Guarantor permitted under clause (5) of Section 4.09(b); or
(B)the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations or Guarantor Subordinated Obligations of any Guarantor purchased in anticipation of satisfying a sinking fund obligation, principal installment or final maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement; or
(42)make any Restricted Investment.
(all such payments and other actions referred to in clauses (1) through (4) of this Section 4.08(a) (other than any exception thereto) shall be referred to as a “Restricted Payment”).
(43)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock or Disqualified Stock of the Company or Subordinated Obligations of the Company or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination);
(44)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Company or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of the Company or any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Guarantor Subordinated Obligations of any Guarantor made by exchange for or out of the proceeds of the substantially concurrent sale of Guarantor Subordinated Obligations of a Guarantor, so long as such refinancing Subordinated Obligations or Guarantor Subordinated Obligations are permitted to be Incurred pursuant to Section 4.09 and constitute Refinancing Indebtedness;
(45)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Stock of the Company or a Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Stock of the Company or such Subsidiary, as the case may be, so long as such refinancing Disqualified Stock is permitted to be Incurred pursuant to Section 4.09 and constitutes Refinancing Indebtedness;
(46)the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation or Guarantor Subordinated Obligation (A) at a purchase price not greater than 101% of the principal amount of such Subordinated Obligation or Guarantor Subordinated Obligation, as applicable, in the event of a Change of Control in accordance with provisions similar to Section 4.15 or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.16; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Company has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer;
(47)any purchase or redemption of Subordinated Obligations or Guarantor Subordinated Obligations from Net Available Cash to the extent permitted under Section 4.16; (48)dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this Section 4.08;
(49)the purchase, redemption or other acquisition (including by cancellation of Indebtedness), cancellation or retirement for value of Capital Stock or equity appreciation rights of the Company held by any future, present or former directors, Officers, employees, management or consultants or advisors of the Company or any Subsidiary of the Company or their assigns, estates, heirs, family members or former family members or any other permitted transferee, in each case in connection with the repurchase provisions under stock option or stock purchase agreements or other agreements to compensate such persons approved by the Board of Directors of the Company; provided that such redemptions or repurchases pursuant to this clause will not exceed $2.5 million in the aggregate during any fiscal year, with any unused amounts in
any fiscal year being carried over to the succeeding fiscal year (the “Carryover Amount” and, for purposes of calculating the Carryover Amount for any fiscal year, the unused amounts from the prior fiscal year shall be deemed to have been utilized first by making any Restricted Payment pursuant to this clause (7) in such fiscal year), although such amount in any fiscal year may be increased by an amount not to exceed:
(A)the Net Cash Proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Company to future, existing or former employees, directors, consultants or members of management of the Company or any of its Subsidiaries that occurs after the Issue Date; plus
(B)the cash proceeds of key man life insurance policies received by the Company or its Subsidiaries after the Issue Date; less
(C)the amount of any Restricted Payments made since the Issue Date with the Net Cash Proceeds described in clauses (A) and (B) of this clause (7);
provided, further, that the cancellation of Indebtedness owing to the Company from employees, directors, Officers or consultants or members of management of the Company or any of its Subsidiaries (including their permitted transferees) in connection with any repurchase of Capital Stock will not be deemed to constitute a Restricted Payment under this Indenture;
(50)the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company issued in accordance with the terms of this Indenture to the extent such dividends are included in the definition of “Consolidated Interest Expense”;
(51)repurchases of Capital Stock deemed to occur (A) upon the exercise, conversion or exchange of stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities if such Capital Stock represents all or portion of the exercise price thereof or (B) as a result of Capital Stock being utilized to satisfy tax withholding obligations upon (a) the exercise of stock options or (b) the vesting of other equity awards that constitute Capital Stock;
(52)any payment of cash in respect of fractional shares of the Company’s Capital Stock upon the exercise, conversion or exchange of any stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities of the Company;
(53)any repayments of Indebtedness (a) of the Company or any Guarantor owing to and held by the Company or any Guarantor or Indebtedness of a Non-Guarantor Subsidiary owing to and held by the Company or any other Subsidiary, and (b) owing to any Non-Guarantor Subsidiary in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany repayments to the Board of Directors of the Company; provided, further, that any intercompany repayments that exceed $10.0 million will only be permitted to the extent that the Company reports such repayments to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following the repayment that caused aggregate intercompany repayments to exceed
$10.0 million;
(54)any payments required to be made to former holders of Wincor Nixdorf Shares in connection with any appraisal proceeding (Spruchverfahren);
(55)[reserved];
(56)[reserved];
(57)Restricted Payments made pursuant to the Diebold, Incorporated 2014 Non-Qualified Stock Purchase Plan (or any successor thereto) in an aggregate amount (net of employee contributions) not to exceed $2.0 million in any fiscal year;
(58)the repurchase or redemption of the Company’s Capital Stock or rights to purchase such Capital Stock issued in connection with any future shareholder rights plan of the Company;
(59)Restricted Payments required to be made pursuant to the terms of the Domination Agreement;
(60)[reserved];
(61)Restricted Payments in connection with the China JV Restructuring; and
(62)other Restricted Payments (excluding non-cash Restricted Payments consisting of Collateral) in an aggregate amount, when taken together with all other Restricted Payments made pursuant to this clause (20) (as reduced by the amount of capital returned from any such Restricted Payments (exclusive of items reflected in Consolidated Net Income)) not to exceed $15.0 million (with the Fair Market Value of each Restricted Payment being measured at the time made and without giving effect to subsequent changes in value);
provided, however, that at the time of and after giving effect to, any Restricted Payment permitted under clauses (5), (8) and (20), no Default shall have occurred and be continuing or would occur as a consequence thereof.
(c)The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of such Restricted Payment (without giving effect to subsequent changes in value) of the assets or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to such Restricted Payment. The amount of any Restricted Payment paid in cash shall be its face amount.
(d)To the extent any cash or any other property is paid or distributed by the Company or any of its Subsidiaries upon the conversion or exchange of any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock of the Company or upon any other acquisition or retirement of any Indebtedness of the Company or any of its Subsidiaries for an amount based on the value of such Capital Stock, (1) any amount of such cash or property that exceeds the principal amount of the Indebtedness that is converted, exchanged, acquired or retired and any accrued interest paid thereon (and only such excess amount) shall be deemed to be a Restricted Payment and (2) the amount of such cash or property up to an amount equal to the principal amount of the Indebtedness that is converted, exchanged, acquired or retired shall be deemed to be a Restricted Payment if such Indebtedness is a Subordinated Obligation or Guarantor Subordinated Obligation. If the Company or any of its Subsidiaries repurchases any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock of the Company in the open market at a price in excess of the principal amount of such Indebtedness and any accrued and unpaid interest thereon, such excess amount shall be deemed to be a Restricted Payment.
(e)For the avoidance of doubt, the Company shall not, and shall not permit any Subsidiary to, make any principal payment on, or purchase, repurchase, redeem, defease, or otherwise acquire or retire for value, prior to the respective scheduled maturity, any (i) Stub Obligations, except
either (a) with the cash proceeds of (x) Indebtedness that (A) is junior with respect to security (including by way of being unsecured) and payment priority to each of the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the New 2L Notes and (B) with respect to which Indebtedness interest may not be paid in cash and may only be paid in kind or (y) newly issued equity of or capital contributions in the Company, or (b) 2024 Notes in connection with the Registered Exchange Offer or pursuant to Section 4.18 or (ii) New 2L Notes, other than a Permitted Equity Issuance Prepayment or in connection with a “change of control” (as defined under the New 2L Notes Indenture) (and solely to the extent the Company (a) has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes, or (b) if any Obligations under such facilities have not been so repaid, only to the extent the “Change of Control Offer” (as defined in the New 2L Notes Indenture) is made using amounts offered to holders of such Obligations, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders).
Section 4.09 Limitation on Indebtedness.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness).
(b)The provisions of Section 4.09(a) will not prohibit the Incurrence of the following Indebtedness:
(63)The Incurrence by the Company or its guarantors of Indebtedness under the ABL Facility, the Guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount or liquidation preference, if applicable, not to exceed at any one time outstanding $250.0 million;
(64)Indebtedness of the Company represented by the Notes (including the Exchange Notes issued on the Issue Date) and Indebtedness of any Guarantor represented by a Note Guarantee (including in respect of such Exchange Notes);
(65)Indebtedness of the Company and its Subsidiaries in existence on the Issue Date (other than Indebtedness described in clauses (1), (2), (4), (5), (6), (8), (10), (11), (15), (16), (19), (20) and (22) of this Section 4.09(b)); provided that any amounts of any such Indebtedness paid down in connection with any purchases, repurchases, redemptions or otherwise (other than in connection with a substantially concurrent refinancing by way of Refinancing Indebtedness) shall be reduced from any amount of Indebtedness Incurred under this clause (3) of this Section 4.09(b) that would otherwise be permitted to be Incurred using Refinancing Indebtedness; provided, further that any New 2L Notes issued pursuant to the Registered Exchange Offer (to the extent such notes do not cause the aggregate principal amount of New 2L Notes outstanding as of the date of, and after giving effect to, the completion of the Registered Exchange Offer to exceed the sum of (i) $400.0 million, plus (ii) the principal amount of PIK Interest (as such term is defined in the New 2L Notes Indenture) (issued or accrued) on New 2L Notes outstanding as of such date to, but excluding, such date, plus (iii) the principal amount of New 2L Notes issued in respect of any accrued and unpaid interest to, but excluding, the Issue Date or such date, as applicable, on any 2024 Notes tendered and accepted for exchange in the Exchange Offer or the Registered Exchange Offer, plus (iv) any other accrued and unpaid fees/expenses in respect of such 2024 Notes that were unpaid at the time of the completion of the Exchange Offer or the Registered Exchange Offer, as applicable, to the extent such fees/expenses were permitted to be, and were, paid for through the issuance of additional New 2L Notes) shall be permitted and deemed Incurred under this Section 4.09(b)(3);
(66)Guarantees by (A) the Company or Guarantors of (i) Indebtedness Incurred by the Company or a Guarantor on or before the Issue Date or (ii) Indebtedness of Non- Guarantor Subsidiaries subject to clause (3) of the definition of Permitted Investments; provided that in the event such Indebtedness that is being Guaranteed under this clause (A) is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, and
(B) Non-Guarantor Subsidiaries of Indebtedness Incurred by Non-Guarantor Subsidiaries in accordance with the provisions of this Indenture;
(67)Indebtedness (a) of the Company or any Guarantor owing to and held by the Company or any Subsidiary or Indebtedness of a Non-Guarantor Subsidiary owing to and held by the Company or any other Subsidiary; provided that any Indebtedness of the Company or a Guarantor owing to and held by any Non-Guarantor Subsidiaries shall be in an aggregate amount outstanding not to exceed $10.0 million at the time any such Indebtedness is Incurred, and (b) in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany Indebtedness to the Board of Directors of the Company; provided, further, that any intercompany Indebtedness that exceeds $10.0 million will only be permitted to the extent that the Company reports such Indebtedness to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following the Incurrence of Indebtedness that caused aggregate intercompany Indebtedness to exceed $10.0 million; provided, further, that:
(A)if the Company is the obligor on Indebtedness owing to a Non- Guarantor Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(B)if a Guarantor is the obligor on Indebtedness owing to a Non- Guarantor Subsidiary, such Indebtedness is expressly subordinated in right of payment to the Note Guarantee of such Guarantor; and
(C)(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Subsidiary of the Company; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Subsidiary of the Company,
shall be deemed, in each case under this clause (5)(C) of this Section 4.09(b), to constitute an Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(68)Preferred Stock of a Subsidiary held by the Company or any other Subsidiary; provided, however, that (A) any subsequent issuance or transfer of Capital Stock or any other event which results in such Preferred Stock being beneficially held by a Person other than the Company or a Subsidiary of the Company; and (B) any sale or other transfer of any such Preferred Stock to a Person other than the Company or a Subsidiary of the Company shall be deemed in each case under this clause (6) to constitute an Incurrence of such Preferred Stock by such Subsidiary;
(69)[reserved];
(70)Indebtedness under Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(71)Indebtedness (including Capitalized Lease Obligations) of the Company or a Subsidiary Incurred to finance the purchase, lease, construction or improvement of any property, plant or equipment used or to be used in the business of the Company or such Subsidiary through the direct purchase of such property, plant or equipment, and any Indebtedness of the Company or a Subsidiary which serves to refinance any Indebtedness Incurred pursuant to this clause (9) in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause
(9) and then outstanding, will not exceed $20.0 million;
(72)Indebtedness Incurred by the Company or its Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(73)Indebtedness (other than Indebtedness for borrowed money) arising from agreements of the Company or a Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets of the Company or any business, assets or Capital Stock of a Subsidiary;
(74)[reserved];
(75)the Incurrence by the Company or any Subsidiary of Refinancing Indebtedness that serves to refinance any Indebtedness Incurred as permitted under clauses (2) and (3) and this clause (13) of this Section 4.09(b);
(76)[reserved];
(77)Indebtedness consisting of avals by any of the Company or its Subsidiaries for the benefit of, and with respect to obligations that are not classified as Indebtedness of, any of the Company or its Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices;
(78)Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(79)[reserved];
(80)[reserved];
(81)Indebtedness Incurred in the ordinary course of business in connection with cash pooling arrangements and cash management arrangements in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject to such arrangements;
(82)Indebtedness consisting of the financing of insurance premiums;
(83)[reserved];
(84)Indebtedness Incurred under Bi-lateral LC/WC Agreements in an aggregate principal amount outstanding at any one time not to exceed $55.0 million (such amount will be calculated exclusive of any bank guarantee or the like issued in connection with a
squeeze-out of any minority shareholders of Wincor Nixdorf (i) in accordance with Sec. 327b(3) of the German Stock Corporation Act (Aktiengesetz), (ii) in accordance with Sec. 62 of the German Transformation Act (Umwandlungsgesetz) in conjunction with 327b(3) of the German Stock Corporation Act (Aktiengesetz), (iii) in relation to a squeeze-out pursuant to 39a and 39b of the German Takeover Code (Wertpapiererwerbs- und Übernahmegesetz) or (iv) a delisting offer pursuant to Sec. 39(2) of the German Stock Exchange Act (Börsengesetz) or similar corporate restructurings)); and
(85)in addition to the items referred to in clauses (1) through (22) above, Indebtedness of the Company and its Subsidiaries in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (23) and then outstanding, will not exceed $50.0 million at any time outstanding.
(c)The Company will not Incur any Indebtedness under Section 4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the Company unless such Indebtedness will be subordinated to the Notes to at least the same extent as such Subordinated Obligations. No Guarantor will Incur any Indebtedness under Section 4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Guarantor Subordinated Obligations of such Guarantor unless such Indebtedness will be subordinated to the obligations of such Guarantor under its Note Guarantee to at least the same extent as such Guarantor Subordinated Obligations. No Subsidiary (other than a Guarantor) may Incur any Indebtedness if such Indebtedness is used, directly or indirectly, to refinance Indebtedness of the Company or a Guarantor.
(d)For purposes of determining compliance with this Section 4.09:
(86)in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 4.09(b), the Company, in its sole discretion, will classify such item of Indebtedness on the date of Incurrence and may later reclassify such item of Indebtedness in any manner that complies with Section 4.09(b) and will be entitled to divide the amount and type of such Indebtedness among more than one of the clauses of Section 4.09(b);
(87)if obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Indebtedness, then such letters of credit shall be treated as Incurred pursuant to such Debt Facility and such other Indebtedness shall not be included; and
(88)except as provided in clause (2) of this Section 4.09(d), Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included.
(e)Accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.09.
(f)For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may Incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(g)For purposes of this Indenture, no Indebtedness will be deemed to be contractually subordinated or junior in right of payment to any other Indebtedness solely by virtue of (1) being unsecured or (2) its having a junior priority with respect to the same collateral.
Section 4.10 Limitation on Liens.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, Incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or assets (including Capital Stock of Subsidiaries), or income or profits therefrom, or assign or convey any right to receive income therefrom, whether owned on the Issue Date or acquired after that date, which Lien is securing any Indebtedness.
(b)In addition, if the Company or any Guarantor, directly or indirectly, creates, Incurs, assumes or suffers to exist any Lien (other than customary Liens on cash collateral in connection with the ABL Facility) securing any funded Indebtedness, a representative of which is required to become a party to an applicable Intercreditor Agreement, the Company or such Guarantor, as the case may be, must concurrently grant a Lien (subject to Permitted Liens) upon such property as security for the Notes and the Note Guarantees, with the Lien upon such property being of the same priority as the other Liens on the Collateral securing the Notes (in accordance with the Lien priorities in any applicable Intercreditor Agreement).
Section 4.11 Future Guarantors.
(a)The Company will cause (i) each Non-Guarantor Subsidiary (other than an Excluded Subsidiary) that, on the Issue Date or any time thereafter, becomes a borrower or Guarantees the Obligations under any of the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2024 Notes, the New 2L Notes or the 2025 Euro Notes and (ii) each Non-Guarantor Subsidiary (other than an Excluded Subsidiary or an Immaterial Subsidiary) domiciled or organized in the United States or any Specified Jurisdiction that, on the Issue Date or any time thereafter, Guarantees any other Indebtedness for borrowed money of (a) the Company or any Guarantor or (b) any Non-Guarantor Subsidiary (and with respect to sub-clause (ii)(b), only to the extent such Indebtedness exceeds $10.0 million), to promptly execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture to this Indenture, the form of which is attached hereto as Exhibit C, pursuant to which such Subsidiary will irrevocably and unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest (including additional interest, if any) in
respect of the Notes on a senior basis and all other Obligations under this Indenture, in each case, subject to the Collateral and Guarantee Requirements.
(b)Each Subsidiary that becomes a Guarantor on or after the Issue Date will also become a party to the applicable Collateral Documents and the applicable Intercreditor Agreements and will as promptly as practicable execute and deliver such joinder documents, security instruments, and financing statements, and, with respect to any Material Real Property located in the United States, Mortgages, opinions of counsel, surveys and title insurance policies as required under Section 11.06, under this Indenture and Collateral Documents to the extent, and substantially in the form, delivered on the Issue Date or, if later, on the date first delivered (but no greater scope) as may be necessary to vest in the Notes Collateral Agent a perfected security interest with the priority described in any applicable Intercreditor Agreement, in each case, subject to no Liens other than Permitted Liens and otherwise in the manner and to the extent set forth in the Collateral Documents and this Indenture and, subject to the terms of the applicable Intercreditor Agreements, in the properties and assets of such new Guarantor constituting Collateral as security for the Notes or the Note Guarantees, and thereupon all provisions of this Indenture and the applicable Intercreditor Agreements relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.
(c)At each time of distribution of annual or quarterly financial information pursuant to clauses (1) or (2) of Section 4.06(a), the Company shall calculate the total assets and total revenues of all Immaterial Subsidiaries of the Company. In the event that the total assets or total revenues of all Immaterial Subsidiaries of the Company that Guarantee any Indebtedness of the Company or any Guarantor for borrowed money (other than Priority Secured Indebtedness or Pari Passu Secured Indebtedness) would exceed 10.0% of the total assets or total revenues (after intercompany eliminations) of the Company and its Subsidiaries, in each case determined in accordance with GAAP and as shown on the Company’s consolidated balance sheet as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available and its consolidated statement of operations for the period of the most recent four consecutive fiscal quarters ending on such balance sheet date, the Company shall, within 30 days of the date of distribution of such financial information, cause one or more Immaterial Subsidiaries of the Company that Guarantee any Indebtedness of the Company or any Guarantor for borrowed money to provide Note Guarantees as and to the extent required to cause the total assets and total revenues of all Immaterial Subsidiaries of the Company not to exceed 10.0% of the total assets or total revenues (after intercompany eliminations) of the Company and its Subsidiaries, in each case, subject to the Collateral and Guarantee Requirements.
(d)The obligations of each Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any Guarantees of the Priority Secured Indebtedness or Pari Passu Secured Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution Obligations under this Indenture, result in the Obligations of such Guarantor under its Note Guarantee not constituting a preference, fraudulent conveyance or fraudulent transfer under federal or state law or any applicable foreign law.
(e)Each Note Guarantee of a Guarantor shall be released in accordance with the provisions of Section 10.06.
Section 4.12 Limitation on Restrictions on Distribution From Subsidiaries.
(a)The Company will not, and will not permit any Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Subsidiary to:
(89)pay dividends or make any other distributions on its Capital Stock to the Company or any of its Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(90)make any loans or advances to the Company or any Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Subsidiary to other Indebtedness Incurred by the Company or any Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(91)sell, lease or transfer any of its property or assets to the Company or any Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.12(a)).
(b)The provisions of Section 4.12(a) will not prohibit encumbrances or restrictions existing under or by reason of:
(92)contractual encumbrances or restrictions pursuant to the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2024 Notes Indenture and the 2024 Notes and related Guarantees, the New 2L Notes Indenture and the New 2L Notes and related Guarantees, the 2025 Euro Notes Indenture and the 2025 Euro Notes and related Guarantees, the 2023 Credit Facility and related documentation and other agreements or instruments in effect at or entered into on the Issue Date;
(93)the 2025 Notes Indentures, the 2025 Notes, the related Guarantees, the Collateral Documents, and the Intercreditor Agreements;
(94)any agreement or other instrument of a Person acquired by the Company or any of its Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property);
(95)any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2) or (3) of this Section 4.12(b) or this clause (4) of this Section 4.12(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith determination of the Company, taken as a whole, no more restrictive with respect to encumbrances and restrictions of the nature described in clauses (1), (2) and (3) of Section 4.12(a) contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.12(b) on the Issue Date, the date such Subsidiary became a Subsidiary or was merged into, or amalgamated or consolidated with a Subsidiary, whichever is applicable;
(96)in the case of clause (3) of Section 4.12(a), Liens permitted to be Incurred under Section 4.10 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(97)purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case, that
impose encumbrances or restrictions of the nature described in clause (3) of Section 4.12(a) on the property so acquired;
(98)contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary;
(99)restrictions on cash or other deposits or net worth imposed by customers, suppliers, lessors or landlords or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
(100)any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Subsidiary in the ordinary course of business and consistent with past practices;
(101)restrictions on cash or other deposits to secure the performance of bids, trade contracts, tenders, government contracts, leases, statutory obligations, surety, stay, custom, performance and appeal bonds or other obligations of a like nature (including standby letters of credit or completion guarantees), in each case in the ordinary course of business;
(102)encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(103)any customary provisions in partnership agreements, limited liability company agreements, joint venture agreements, other similar agreements and related governance documents entered into in the ordinary course of business;
(104)to the extent required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary of which less than 90% of the Voting Stock is owned by the Company or any of its Subsidiaries; and
(105)other Indebtedness Incurred or Preferred Stock issued by a Subsidiary permitted to be Incurred pursuant to the provisions of Section 4.09 that, in the good faith determination of the Company, are not more restrictive with respect to encumbrances and restrictions of the nature described in clauses (1), (2) and (3) of Section 4.12(a), taken as a whole, than those applicable to the Company under the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2024 Notes and the 2024 Notes Indenture, the New 2L Notes and the New 2L Notes Indenture, or the 2025 Notes and the 2025 Notes Indentures on the Issue Date (which results in encumbrances or restrictions at a Subsidiary level comparable to those applicable to the Company).
Section 4.13 [Reserved].
Section 4.14 Transactions with Affiliates.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or asset or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving an aggregate consideration in excess of $5.0 million, unless:
(106)the terms of such Affiliate Transaction are not materially less favorable to the Company or such Subsidiary, as the case may be, than those that could have been obtained
by the Company or such Subsidiary in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person that is not an Affiliate;
(107)in the event such Affiliate Transaction involves an aggregate consideration in excess of $30.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) of this Section 4.14(a)); and
(108)in the event such Affiliate Transaction involves an aggregate consideration in excess of $50.0 million, the Company has received a written opinion from an Independent Financial Advisor stating that such Affiliate Transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(109)any transaction among Non-Guarantor Subsidiaries and Non-Borrower Subsidiaries and any Guarantees issued by any Non-Guarantor Subsidiary for the benefit of any Non-Guarantor Subsidiary, as the case may be, in accordance with Section 4.09;
(110)Restricted Payments permitted to be made pursuant to Section 4.08 or Permitted Investments, provided that any Investment made in a Non-Guarantor Subsidiary shall be made on commercially reasonable terms; (111)issuances or sales of Capital Stock (other than Disqualified Stock) of the Company in connection with any contribution to the capital of the Company;
(112)any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or as the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of Officers and employees approved by the Board of Directors of the Company;
(113)the payment of reasonable and customary fees and reimbursed expenses paid to, and indemnity provided on behalf of, directors of the Company or any Subsidiary;
(114)loans or advances to employees, Officers, directors or consultants of the Company or any Subsidiary in the ordinary course of business consistent with past practices;
(115)any transaction with a Person that would constitute an Affiliate Transaction solely because the Company or a Subsidiary owns Capital Stock in or otherwise controls such Person;
(116)any agreement as in effect as of the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such amendment, modification, supplement, extension or renewal is not more disadvantageous to
the Holders in any material respect in the good faith judgment of the Board of Directors of the Company, when taken as a whole, than the terms of the agreements in effect on the Issue Date;
(117)any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into, or amalgamated or consolidated with, the Company or a Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition, amalgamation, consolidation or merger, and any amendment thereto, so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of the Board of Directors of the Company when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition, amalgamation, consolidation or merger;
(118)transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Company, such transactions are on terms that are no less favorable to the Company or the relevant Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Company or such Subsidiary with an unrelated Person;
(119)any grant, issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith; and
(120)transactions in which the Company or any Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a)If a Change of Control occurs, the Company will make an offer to purchase all of the Notes (the “Change of Control Offer”) at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (the “Change of Control Payment”), subject to the right of Holders of record on a Record Date to receive any interest due on the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Company has exercised its right to redeem all of the Notes pursuant to Section 3.07, the Company will mail a notice of such Change of Control Offer to each Holder or otherwise send such notice in accordance with the Applicable Procedures, with a copy to the Trustee, stating:
(121)that a Change of Control Offer is being made pursuant to this Section 4.15, the expiration time for such Change of Control Offer (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise sent in accordance with the Applicable Procedures) and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Company at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the applicable Record Date to receive interest due on the Change of Control Payment Date);
(122)the purchase date (which shall be no later than five Business Days after the date such Change of Control Offer expires) (the “Change of Control Payment Date”);
(123)if such notice is delivered prior to the occurrence of a Change of Control, that the Change of Control Offer is conditioned upon the occurrence of such Change of Control and setting forth a brief description of the definitive agreement for the Change of Control;
(124)that Notes must be tendered in integral multiples of $1,000, and any Note not properly tendered will remain outstanding and continue to accrue interest;
(125)that, unless the Company defaults in the payment of the Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date;
(126)that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” attached to such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(127)that Holders shall be entitled to withdraw their tendered Notes and their election to require the Company to purchase such Notes; provided that the Paying Agent receives at the address specified in the notice, not later than the of such Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(128)that, if a Holder is tendering less than all of its Notes, such Holder will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) (the unpurchased portion of the Notes must be equal to $2,000 and integral multiples of $1,000 in excess thereof); and
(129)the other procedures, as determined by the Company, consistent with this Section 4.15 that a Holder must follow in order to have its Notes repurchased.
The notice, if mailed or otherwise delivered in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (A) the notice is mailed or otherwise delivered in a manner herein provided and (B) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect.
(b)On the Change of Control Payment Date, the Company will, to the extent lawful:
(130)accept for payment all Notes or portions of Notes (in integral multiples of
$1,000) validly tendered and not validly withdrawn pursuant to the Change of Control Offer provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000;
(131)deposit with the Paying Agent (or, if the Company or any Subsidiary is acting as Paying Agent, segregate and hold in trust) an amount sufficient to make the Change of Control Payment in respect of all Notes or portions of Notes so validly tendered and not validly withdrawn; and
(132)deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Company.
(c)The Paying Agent will promptly mail (or otherwise send in accordance with the Applicable Procedures) to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or otherwise send in accordance with the Applicable Procedures) (or cause to be transferred by book-entry) to each Holder a new Note (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate will be required for the Trustee to authenticate and mail or send such new Note) equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of $2,000 and integral multiples of $1,000 in excess thereof.
(d)If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest to, but excluding, the Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date. Unless the Company defaults in the payment of the Change of Control Payment, interest will cease to accrue on the Notes or portions thereof purchased on the Change of Control Payment Date.
(e)The Company will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 applicable to a Change of Control Offer made by the Company and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer or (2) the Company has exercised its right to redeem all of the Notes in accordance with Section 3.07. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time such Change of Control Offer is made.
(f)The Company will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of the conflict.
(g)If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Company, or any third party making a Change of Control Offer in lieu of the Company pursuant to Section 4.15(e), purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party will have the right, upon not less than 30 days’ nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to such Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.
Section 4.16 Asset Dispositions.
(a)The Company will not, and will not permit any of its Subsidiaries to, cause or make any Asset Disposition unless:
(133)the Company or such Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(134)100% of the consideration from such Asset Disposition received by the Company or such Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (and with respect to any securities, notes or other obligations received by the Company or any Subsidiary from the transferee that are Cash Equivalents, only to the extent such instruments are converted by the Company or such Subsidiary into cash (to the extent of the cash received)) within 180 days following the closing of such Asset Disposition; and
(135)to the extent that any consideration received by the Company or any Subsidiary in such Asset Disposition constitutes securities or other assets that are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes and the Note Guarantees, as applicable, being of the same priority with respect to the Notes and the Note Guarantees, as applicable, as the Lien on the assets disposed of in the Asset Disposition.
(b)Any Net Available Cash from (a) any transaction or series of related transactions constituting an Asset Disposition in excess of $25.0 million and (b) any transactions (other than those referred to in (a)) involving the sale of assets within the most recent four consecutive fiscal quarters ending prior to any date of determination for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (to be calculated at the end of each fiscal quarter, with respect to such quarter and the prior three fiscal quarters), which transactions in aggregate are in excess of $25.0 million for such four quarter period, shall constitute “Asset Disposition Proceeds”. Within five Business Days from (i) the date the Company or any of its Subsidiaries receives Asset Disposition Proceeds or (ii) the delivery of the most recent such financial statements (solely in connection with (b) above, as applicable (such date, the “Proceeds Trigger Date”) an amount equal to 100% of the Asset Disposition Proceeds shall be applied by the Company or such Subsidiary, as the case may be, as follows:
(136)if any of the assets disposed of in the Asset Disposition were ABL Priority Collateral, to reduce (and to, if required, permanently reduce commitments with respect thereto) (i) ABL Priority Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) and, (ii), solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub-clause (i), Priority Secured Indebtedness (and if such Priority Secured Indebtedness being reduced is revolving credit Indebtedness, to permanently reduce commitments with respect thereto) Incurred under the Superpriority Credit Facility and, (iii) solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub-clauses (i) and (ii), to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) Pari Passu Secured Indebtedness (other than any such Indebtedness owed to or
held by the Company or any Affiliate of the Company) Incurred under the 2025 Credit Facility or the 2025 Notes, to the extent required by the ABL Facility and/or such other Pari Passu Secured Indebtedness; provided that if the Company elects to repay any Pari Passu Secured Indebtedness other than the Notes, the Company shall (i) equally and ratably reduce Obligations under the Notes, as provided under Section 3.07 or through open market purchased at or above 100% of the principal amount thereof or (ii) make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes on a ratable basis with such Pari Passu Secured Indebtedness at 100% of the principal amount thereof, in each case plus the amount of accrued but unpaid interest on the Notes that are purchased or redemeed;
(137)if any of the assets disposed of in the Asset Disposition do not constitute ABL Priority Collateral, to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) (i) Priority Secured Indebtedness (other than any Priority Secured Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the Superpriority Credit Facility; and, (ii) solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub- clause (i), Pari Passu Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the 2025 Credit Facility or the Notes, to the extent required by the ABL Facility and/or such other Pari Passu Secured Indebtedness, provided that if the Company elects to repay any Pari Passu Secured Indebtedness other than the Notes, the Company shall (i) equally and ratably reduce Obligations under the Notes, as provided under Section 3.07 or through open market purchases at or above 100% of the principal amount thereof or (ii) make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes on a ratable basis with such Pari Passu Secured Indebtedness at 100% of the principal amount thereof, in each case plus the amount of accrued but unpaid interest on the Notes that are purchased or redeemed;
(138)solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to Section 4.16(b)(1) and (2), reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) solely if required by its terms or applicable law, Junior Lien Indebtedness (other than any Junior Lien Indebtedness owed to or held by the Company or any Affiliate of the Company) or Indebtedness of a Non-Guarantor Subsidiary; provided, and notwithstanding the foregoing, the Company will not be permitted to repay the 2024 Notes or any other Junior Lien Indebtedness unless (i) it has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility, and the 2025 Notes or, (ii) if any Obligations under such facilities have not been so repaid, only to the extent the repayment of any 2024 Notes or any such other Junior Lien Indebtedness is made using amounts previously offered to holders of such Priority Secured Indebtedness or Pari Passu Secured Indebtedness, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders;
(139)in the case of an Asset Disposition by a Non-Guarantor Subsidiary, to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) (A) Indebtedness of such Non-Guarantor Subsidiary (other than Indebtedness owed to the Company or a Guarantor), to the extent required by applicable local law or the terms of Indebtedness of any such Non-Guarantor Subsidiary or (B) Priority Secured Indebtedness or Pari Passu Secured Indebtedness of the Company or a Guarantor (following the same payment priority as set forth in Section 4.16(b)(2) and, if applicable, Section 4.16(b)(3), mutatis mutandis);
(140)to maintain, develop, construct, improve, upgrade, or repair assets, or replace disposed-of-assets (in each case, other than current assets), used or useful in such entity’s business or to replace assets sold in such Asset Disposition; provided that, to the extent that any newly acquired assets are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes and the Note Guarantees, as applicable, being of the same priority with respect to the Notes and the Note Guarantees, as applicable, as the Lien on the assets disposed of in the Asset Disposition; or
(141)any combination of the foregoing;
provided that pending the final application of any such Net Available Cash in accordance with clause (1), (2), (3), (4), (5) or (6) of this Section 4.16(b), the Company and its Subsidiaries may temporarily reduce Indebtedness (including under the ABL Facility or a revolving Debt Facility) or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of clause (5) of this Section 4.16(b) (including as part of clause (6) of this Section 4.16(b)), any such expenditures must be made within 90 days of the Proceeds Trigger Date.
(c)Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.16(b) shall be deemed to constitute “Excess Proceeds.” On the 91st day after a Proceeds Trigger Date, the Company will be required to make an offer (an “Asset Disposition Offer”) to all Holders and, to the extent required by the terms of any outstanding Priority Secured Indebtedness or Pari Passu Secured Indebtedness, to all holders of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness , to purchase the maximum aggregate principal amount of Notes and any such Priority Secured Indebtedness or such Pari Passu Secured Indebtedness, as the case may be, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on a Record Date to receive interest due on the Asset Disposition Purchase Date), in accordance with the procedures set forth in Section 3.10 or the agreements governing the Priority Secured Indebtedness or the Pari Passu Secured Indebtedness, as applicable, in the case of the Notes in integral multiples of $1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than $2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is $2,000. The Company shall commence an Asset Disposition Offer with respect to Excess Proceeds by mailing (or otherwise communicating in accordance with the Applicable Procedures) the notice required by Section 3.10, with a copy to the Trustee.
(d)To the extent that the aggregate amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Company may use any remaining Excess Proceeds to reduce any Indebtedness and for other general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Priority Secured Indebtedness (and such Pari Passu Secured Indebtedness, as applicable) to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of tendered Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) (provided that the selection of such Priority Secured Indebtedness and Pari
Passu Secured Indebtedness shall be made pursuant to the terms of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness), as applicable). Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.17 Effectiveness of Covenants.
(a)Following the first day (such date, a “Suspension Date”):
(142)the Notes have an Investment Grade Rating from both of the Rating
Agencies; and
(143)no Default has occurred and is continuing under this Indenture,
the Company and its Subsidiaries will not be subject to the provisions of Sections 3.10 and 4.16 (but, in each case, only with respect to any Asset Disposition of assets that are not or not required to be Collateral), 4.08, 4.09, 4.12, 4.14 and 5.01(a)(4) (collectively, the “Suspended Covenants”).
(b)If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default occurs and is continuing, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain an Investment Grade Rating from both of the Rating Agencies and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating from both of the Rating Agencies and no Default or Event of Default is in existence); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the Suspension Date and the Reinstatement Date is referred to as the “Suspension Period.” In addition, during any Suspension Period, the amount of Excess Proceeds shall be reset at zero.
(c)On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period will be classified to have been Incurred pursuant to one of the clauses set forth in Section 4.09(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reinstatement Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reinstatement Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 4.09(b), such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified under clause (3) of Section 4.09(b). Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.08(a) will be made as though Section 4.08(a) had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.08(a).
(d)Promptly following the occurrence of any Suspension Date or Reinstatement Date, the Company will provide an Officer’s Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Suspension Date or Reinstatement Date has occurred or notify the Holders of any Suspension Date or Reinstatement Date.
Section 4.18 Further Covenants.
(a)The Company shall (a) use reasonable best efforts, consistent with applicable securities laws, to file a Form S-4 by February 14, 2023 for a registered exchange offer offering unit securities comprised of New 2L Notes and warrants exercisable for shares of Common Stock of the Company in exchange for existing 2024 Notes held by holders that did not, or were not eligible to, participate in the exchange offer (the “2024 Exchange Offer”), launched on or about the date of the Offering Memorandum, offering units comprised of New 2L Notes and warrants exercisable for shares of Common Stock of the Company in exchange for existing 2024 Notes (the “Registered Exchange Offer”),
(b)use reasonable best efforts, consistent with applicable securities laws, to launch the Registered Exchange Offer as soon as practicable but no later than March 15, 2023 and (c) shall consummate the Registered Exchange Offer as soon as practicable but no later than May 30, 2023, subject to extension on the account of any SEC review period but in any event no later than June 30, 2023. In connection with such Registered Exchange Offer, the Company shall use reasonable best efforts to maximize retail participation in the Registered Exchange Offer, which shall include a soliciting broker fee payable to retail brokers that are appropriately designated by their tendering holder clients to receive such fee.
(b) In the event that the aggregate principal amount of 2024 Notes tendered for exchange in the 2024 Exchange Offer and the Registered Exchange Offer is less than $380.0 million, the Company shall, no later than April 15, 2024, use an amount of Net Cash Proceeds from one or more issuances of Capital Stock completed on or prior to such date sufficient to repurchase, redeem, repay or pay in full an aggregate principal amount of 2024 Notes (for the avoidance of doubt, at prices that may be at or below 100% of the principal amount thereof) that is at least equal to (x) $380.0 million less (y) the aggregate principal amount of 2024 Notes actually tendered and accepted for exchange in the 2024 Exchange Offer and the Registered Exchange Offer plus (z) any accrued and unpaid interest and any other accrued and unpaid fees/expenses in respect of such 2024 Notes that remain unpaid at the time of repurchase, redemption, prepayment or payment in full.
Section 4.19 Additional Amounts.
(a)All payments by any or each of the Company and the Guarantors in respect of the Notes or any Note Guarantee shall be made free and clear of and without any withholding or deduction for or on account of any present or future Taxes (as defined below), unless the withholding or deduction of such Taxes is required by law or the official interpretation thereof, or by the administration thereof. If the Company or any Guarantor shall be required by any Non-U.S. Taxing Jurisdiction (as defined below) to withhold or deduct any Taxes from or in respect of any sum payable or treated as payable under the Notes or any Note Guarantee, it will (i) pay such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts receivable by beneficial owners of any Notes after such withholding or deduction equal the respective amounts which would have been receivable by such beneficial owners in the absence of such withholding or deduction, (ii) make such withholding or deduction, and (iii) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts will be payable in respect of any Note:
(144)to the extent that such Taxes are imposed or levied by reason of the Holder (or the beneficial owner) having some connection with the Non-U.S. Taxing Jurisdiction other than the mere holding (or beneficial ownership) of such Note or receiving principal or interest payments on the Note or enforcing rights with respect to the Notes (including but not limited to citizenship, nationality, residence, domicile, or existence of a business, permanent establishment, a dependent agent, a place of business or a place of management present or deemed present in the Non-U.S. Taxing Jurisdiction);
(145)to the extent that any Tax is imposed other than by deduction or withholding from payments of principal of or premium, if any, or interest on the Notes;
(146)to the extent that any Tax would not have been imposed but for the failure of the Holder (or beneficial owner) to comply with any certification, identification or other reporting requirement concerning its nationality, residence, identity or connection with the Non-
U.S. Taxing Jurisdiction if (i) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or part of the Tax, and (ii) the Company, any applicable Guarantor or the Trustee, as the case may be, has given the Holders (or beneficial owners) at least 30 days prior notice that they will be required to comply with such requirement;
(147)to the extent that any Tax would not have been imposed but for the failure of the Holder to surrender (where surrender is required) the Note for payment within 30 days after the Company or the applicable Guarantor, as the case may be, has made available a payment of principal or interest, provided that the Company or such Guarantor, as the case may be, will pay Additional Amounts to which a Holder would have been entitled had the Note been surrendered on the last day of such 30-day period;
(148)to the extent that such Taxes are imposed by reason of an estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, assessments or other governmental charges;
(149)to the extent that such Taxes could have been avoided if the Holder of Notes had presented the relevant Note (where presentation is required) to another Paying Agent in a member state of the European Union;
(150)to the extent that such Taxes arise pursuant to section 50a para. 7 of the German Income Tax Act (Einkommensteuergesetz – EstG)
(151)to the extent such Tax is imposed by France on a payment made to a Holder solely because (i) the Holder is incorporated, domiciled or established in, or acting through an office situated in, a non-cooperative state or territory (État ou territoire non coopératif) as set out in the lists referred to in Article 238-0 A of the French tax code, as such lists may be amended from time to time (a “Non-Cooperative Jurisdiction”) or (ii) this payment is made to an account opened in the name of or for the benefit of that Holder of Notes or in a financial institution situated in a Non-Cooperative Jurisdiction; or
(152)any combination of items (1) through (8) above.
(b)Notwithstanding the foregoing, no Additional Amounts will be paid (1) to a Holder that is a fiduciary or a partnership or not the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder, (2) with respect to any Dutch Taxes withheld or deducted pursuant to the Dutch Withholding Tax Act (Wet bronbelasting 2021), as in effect on November 28, 2022, in respect of interest payments made (or deemed to be made) to “affiliated entities” (within the meaning of the Dutch Withholding Tax Act (Wet bronbelasting 2021)) or (3) with respect to any withholding or deduction that is imposed in connection with Sections 1471-1474 of the Code and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing FATCA or any law, regulation or official guidance enacted or issued in any jurisdiction with respect thereto.
“Taxes” means all taxes, withholdings, duties, assessments or governmental charges of whatever nature (including any penalties, interest and other liabilities relating thereto) imposed or levied by or on behalf of the jurisdiction of incorporation or tax residency of the Company or any applicable Guarantor or the jurisdiction of incorporation or tax residency of any successor entity to the Company or any such Guarantor, or the jurisdictions of any Paying Agents, or any other jurisdiction through which payment is made, in each case other than the United States, or, in each case, any political subdivision thereof or any authority or agency therein or thereof having power to tax (each, a “Non-U.S. Taxing Jurisdiction”).
(c)At least 10 days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 10th day prior to such date, in which case it shall be promptly thereafter), if the Company or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, it will deliver to the Trustee and the Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. The Company or any Guarantor, as applicable, will provide the Paying Agent with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, other reasonable documentation) evidencing any payment of any Taxes in respect of which the Company or the Guarantor has paid any Additional Amounts. Copies of such documentation will be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(d)The Company and each Guarantor will also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) which arise in any jurisdiction from the execution, delivery, registration, enforcement or the making of payments in respect of the Notes or its Note Guarantee, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not either (i) the United States (or a political subdivision thereof) or (ii) a Non-U.S. Taxing Jurisdiction, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes or its Note Guarantee following the occurrence of any Default or Event of Default.
(e)All references in this Indenture to principal of and premium, if any, and interest on the Notes will include any Additional Amounts payable by the Company or any Guarantor in respect of such principal, premium, if any, and interest, and express mention of the payment of Additional Amounts, if applicable, will not be construed as excluding Additional Amounts where such express mention is not made.
Section 4.20 Limitation on Activities of the Dutch Issuer Guarantor.
The Dutch Issuer Guarantor shall not conduct, transfer, or otherwise engage in any material business or operations and will not own or otherwise hold any material assets other than (1) any action required or, in the good faith judgment of the Company, desirable to maintain its existence, (2) the performance of its obligations under the Superpriority Credit Facility, ABL Facility, 2023 Credit Facility, 2025 Credit Facility, 2025 Notes, New 2L Notes, the Collateral Documents, the Collateral Documents as defined in the 2025 Euro Notes Indenture, and the Intercreditor Agreements and any other Indebtedness (and any related agreements or collateral documents) Incurred by the Dutch Issuer Guarantor in compliance with this Indenture, (3) any action required or, in the good faith judgment of the Company, desirable in connection with the listing of the 2025 Euro Notes, (4) activities incidental to its maintenance and continuance and to any of the foregoing activities, (5) the intercompany loan pursuant to which the Dutch Issuer Guarantor lent the net proceeds from the offering of the Existing Notes (as defined in the
2025 Euro Notes Indenture) to Diebold Germany or any other intercompany loan pursuant to which the Dutch Issuer Guarantor will lend the net proceeds from any other Indebtedness Incurred by the Dutch Issuer Guarantor in compliance with this Indenture to Diebold Germany or any other Subsidiary and (6) any funds received from or at the direction of the Company or any Affiliate of the Company in connection with the performance of its obligations under the Superpriority Credit Facility, ABL Facility, 2023 Credit Facility, 2025 Credit Facility, 2025 Notes, New 2L Notes, the Collateral Documents, the Collateral Documents as defined in the 2025 Euro Notes Indenture, and the Intercreditor Agreements or any other Indebtedness (and any related agreements or collateral documents) Incurred by the Company in compliance with this Indenture.
Section 4.21 Collateral and Guarantee Requirements.
(a)The Company, each Note Party and each Subsidiary of the Company not constituting an Excluded Subsidiary shall have satisfied the Collateral and Guarantee Requirements by or on the Issue Date; provided that to the extent that the Collateral and Guarantee Requirements (other than the execution of the Collateral Documents, delivery of Uniform Commercial Code or PPSA financing statements with respect to perfection of security interests in all assets of the Note Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA of any applicable jurisdiction, delivery of intellectual property security agreements in form for filing with the USPTO, USCO and the Canadian Intellectual Property Office and the delivery of possessory collateral) cannot be satisfied by or on the Issue Date and are not satisfied as of the Issue Date after the Company has used commercially reasonable efforts to do so, such unsatisfied requirements shall be required to be satisfied as promptly as practicable after the Issue Date and in any event within the period specified therefor in Appendix D.
(b)The Company shall have delivered to the Notes Collateral Agent on the Issue Date, (i) a completed Perfection Certificate dated as of the Issue Date and signed by an Officer of each of the Company and each Note Party, together with all attachments contemplated thereby and (ii) results of
(x)searches of the Uniform Commercial Code filings (or equivalent filings, including PPSA filings) and
(y)bankruptcy, judgment, tax and intellectual property lien searches requested by the Trustee, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Trustee that the Liens indicated by such financing statements (or other documents) are permitted by hereunder or have been or will be released in connection with the issuance of the Notes on the Issue Date.
(c)Subject to clauses (a) and (b) above, each document (including any UCC, PPSA (or similar) financing statement and intellectual property security agreements and, with respect to any Collateral Document governed by French law, certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Guarantor whose shares are pledged) required by any Collateral Document or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of the Notes Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Document (unless such Collateral Document provides for any such requirement to be provided at a later point in time), shall be in proper form for filing, registration or recordation and the Trustee have made arrangements for such filing, registration or recordation.
ARTICLE 5 SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets.
(a)The Company will not consolidate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person unless:
(153)the resulting, surviving or transferee Person shall be the Company;
(154)to the extent any assets of the Person who is merged, consolidated or amalgamated with or into the Company are assets of the type that would constitute Collateral under the Collateral Documents, the Company will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Indenture or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents;
(155)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(156)immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A)the Company would be in compliance with the Pro Forma Test Conditions; or
(B)the Consolidated Coverage Ratio of the Company and its Subsidiaries would be equal to or greater than such ratio for the Company and its Subsidiaries immediately prior to such transaction;
(157)each Guarantor (unless it is the other party to the transactions described above, in which case clause (1) of Section 5.01(b) shall apply) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to the Company’s obligations under this Indenture, the Notes, the Collateral Documents and the Intercreditor Agreements; and
(158)the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding up or disposition, and such supplemental indenture and any other supplemental agreements comply with this Indenture.
(b)Notwithstanding clause (4) of Section 5.01(a), to the extent that the Company is the surviving Person:
(159)the Company may consolidate with, merge with or into or transfer all or part of its properties and assets to any Subsidiary, and any Subsidiary may consolidate with, merge with or into or transfer all or part of its properties and assets to the Company, so long as no Capital Stock of the Subsidiary is distributed to any Person other than the Company; provided
that, in the case of a Subsidiary that merges into the Company, the Company will not be required to comply with Section 5.01(a)(6); and
(160)the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state of the United States or the District of Columbia, so long as the amount of Indebtedness of the Company and its Subsidiaries is not increased thereby.
(c)The Company shall not permit any Guarantor to consolidate with, amalgamate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Company or another Guarantor) unless:
(161)(A) if such entity remains a Guarantor, the resulting, surviving, continuing or transferee Person (if not such Guarantor) shall expressly assume, by a supplemental indenture hereto and the applicable Collateral Documents in a form reasonably satisfactory to the Trustee and/or the Notes Collateral Agent, as applicable, all the obligations of such Guarantor under its Guarantee;
(B)to the extent any assets of the Person who is merged, consolidated or amalgamated with or into the successor Guarantor are assets of the type that would constitute Collateral under the Collateral Documents, the successor Guarantor will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Indenture or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents;
(C)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(D)the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, winding-up or disposition and such supplemental indenture and any other supplemental agreements comply with this Indenture; or
(162)in the event the transaction results in the release of the Guarantor’s Note Guarantee under clause (1)(A) of Section 10.06(a), the transaction is made in compliance with Section 4.16 (it being understood that only such portion of the Net Available Cash as is required to be applied on the date of such transaction in accordance with the terms of this Indenture needs to be applied in accordance therewith at such time).
(d)For purposes of this Section 5.01, the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Company or a Guarantor, as the case may be, which properties and assets, if held by the Company or such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Company or such Guarantor on a consolidated basis, will be deemed to be the disposition of all or substantially all of the properties and assets of the Company or such Guarantor, as applicable.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(163)default in any payment of interest on any Note when due, continued for 30 days;
(164)default in the payment of principal or premium, if any, on any Note when due at its Stated Maturity, upon mandatory or optional redemption, upon required repurchase, upon declaration or otherwise;
(166)failure by the Company or any Guarantor to comply for 30 days after notice as provided below with any of their obligations under ARTICLE 4 (in each case, other than (A) a failure to purchase Notes, which constitutes an Event of Default under Section 6.01(a)(2), (B) a failure to comply with Section 5.01 which constitutes an Event of Default under Section 6.01(a)(3) or (C) a failure to comply with any of Sections 4.06 or 9.07, each of which constitutes an Event of Default under Section 6.01(a)(5));
(167)failure by the Company or any Guarantor to comply for 60 days (or, in the case of a failure to comply with Section 4.06, 120 days) after notice as provided below with its other agreements contained in this Indenture or the Notes;
(168)default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Subsidiaries), other than Indebtedness owed to the Company or a Subsidiary, whether such Indebtedness or Guarantee now exists or is created after the Issue Date, which default:
(A)is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness; or
(B)results in the acceleration of such Indebtedness prior to its maturity;
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $75.0 million or more;
(169)failure by the Company or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $75.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days or more after such judgment becomes final;
(170)(i) the Company or a Significant Subsidiary or any group of Subsidiaries (excluding any Immaterial Subsidiaries) that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Laws:
(A)commences proceedings to be adjudicated bankrupt or insolvent;
(B)consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking an arrangement of debt, reorganization, dissolution, winding up or relief under applicable Bankruptcy Laws; provided that any of the foregoing actions shall not constitute a Default if this would constitute a breach of section 44 of the German Act on the Stabilisation and Restructuring Framework for Business (StaRUG);
(C)consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor, sequestrator, administrator or other similar official of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors; or
(E)generally is not paying its debts as they become due;
(ii)a court of competent jurisdiction enters an order or decree under any Bankruptcy Laws that:
(A)is for relief against the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, in a proceeding in which the Company, any such Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(B)appoints a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor, sequestrator, administrator or other similar official of the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property of the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary; or
(C)orders the liquidation, dissolution or winding up of the Company, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(171)any Note Guarantee of a Significant Subsidiary or any group of Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared null and void in a judicial proceeding or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary denies or disaffirms its obligations under this Indenture or its Note Guarantee; or
(172)with respect to any Collateral having a Fair Market Value in excess of $50.0 million, individually or in the aggregate, (A) the security interest under the Collateral Documents, at any time, ceases to be a valid and perfected Lien (perfected as or having the priority required by the Collateral Documents and this Indenture) and in full force and effect for any reason other than in accordance with their terms and the terms of this Indenture and such failure continues for 60 days and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations or the application thereof, or from the failure of the Notes Collateral Agent (or, as applicable, the (i) Controlling Senior Representative (as defined in the ABL Intercreditor Agreement), (ii) First Priority Representative (as defined in the Multi Lien Intercreditor Agreement), (iii) Designated First Priority Representative (as deinfed in the Non-Released Multi Lien Intercreditor Agreement, (iv) Controlling Agent (as defined in the First Lien Pari Passu Intercreditor Agreement) or (v) Controlling Agent (as defined in the Junior Lien Pari Passu Intercreditor Agreement)) to maintain possession of certificates or instruments actually delivered to it representing securities pledged under the Collateral Documents or (B) the Company or any Guarantor that is a Significant Subsidiary or any group of Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary asserts, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable and such Person fails to rescind such assertion within 60 days.
However, a Default under clauses (4) and (5) of this Section 6.01(a) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes notify the Company of the Default and the Company does not cure such Default within the time specified in clauses (4) and (5) of this Section 6.01(a) after receipt of such notice.
(b)In the event of a declaration of acceleration of the Notes because an Event of Default described in clause (6) of Section 6.01(a) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if:
(173)the default triggering such Event of Default pursuant to clause (6) of Section 6.01(a) shall be remedied or cured by the Company or a Subsidiary or waived by the holders of the relevant Indebtedness within 20 days after the declaration of acceleration with respect thereto; and
(174)(A) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (B) all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
Section 6.02 Acceleration.
(a)If an Event of Default (other than an Event of Default described in clause (8) of Section 6.01(a)) occurs and is continuing, the Trustee by written notice to the Company, specifying the Event of Default, or the Holders of at least 25% in principal amount of the then outstanding Notes by written notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable immediately. Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately.
(b)Notwithstanding the foregoing, in case an Event of Default under clause (8) of Section 6.01(a) occurs and is continuing, the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
(c)The Holders of a majority in principal amount of the outstanding Notes may waive all past defaults (except with respect to nonpayment of principal, premium or interest) and rescind any such acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, other than the nonpayment of the principal, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in principal amount of the outstanding Notes by written notice to the Trustee may on behalf of all Holders waive any existing Default and its consequences hereunder, except:
(1)a continuing Default in the payment of the principal, premium, if any, or interest on any Note held by a non-consenting Holder (including in connection with an Asset Disposition Offer or a Change of Control Offer); and
(2)a Default with respect to a provision that under Section 9.02 cannot be amended without the consent of each Holder affected,
provided that, subject to Section 6.02, the Holders of a majority in principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Subject to the terms of the applicable Intercreditor Agreements, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the Notes Collateral Agent. However, the Trustee and the Notes Collateral Agent, as the case may be, may refuse to follow any direction that conflicts with law, this Indenture, the Notes, any Note Guarantee, the Collateral Documents and the applicable Intercreditor Agreements, or that the Trustee or the Notes Collateral Agent determines in good faith is unduly prejudicial to the rights of any other Holder or that would, in its or its counsel’s opinion, involve the Trustee or the Notes Collateral Agent in personal liability. For the avoidance of doubt, the Trustee and the Notes Collateral Agent may refrain from acting in accordance with any instructions of Holders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in this Indenture and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
Section 6.06 Limitation on Suits.
Subject to Section 6.07, no Holder may pursue any remedy with respect to this Indenture or the Notes (subject to the Intercreditor Agreements) unless:
(1)such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2)the Holders of at least 25% in principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;
(3)such Holders have offered the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(4)the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5)the Holders of a majority in principal amount of the then outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Company and
any other obligor on the Notes for the whole amount of principal, premium, if any, and interest remaining unpaid on the Notes, together with interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent and their agents and counsel.
Section 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Company, the Guarantors, the Trustee, the Notes Collateral Agent and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy are, to the extent permitted by law, cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this ARTICLE 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
The Trustee may file proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Notes Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Company (or any other obligor upon the Notes, including the Guarantors), its creditors or its property and is entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other securities or property payable or deliverable on any such claims. Any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee or Notes Collateral Agent and its agents and counsel, and any other amounts due the Trustee or Notes Collateral Agent under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel, and any other amounts due the Trustee or the Notes Collateral Agent under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by
a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.13 Priorities.
Subject to the terms of the Collateral Documents and the Intercreditor Agreements with respect to any proceeds of Collateral, if the Trustee collects any money or property pursuant to this ARTICLE 6, pursuant to the foreclosure or other remedial provisions contained in the Collateral Documents or the Intercreditor Agreements or any money or other property distributable in respect of any Guarantor’s Guaranteed Obligations under this Indenture after an Event of Default, it shall pay out the money and property in the following order:
(1)to the Trustee and the Notes Collateral Agent, their agents and attorneys for amounts due under Section 7.07, including payment of all compensation, reasonable expenses and liabilities incurred, and all advances made, by the Trustee and to the Notes Collateral Agent for the costs and expenses incurred under the Collateral Documents and the Intercreditor Agreements;
(2)to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(3)to the Company or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.13. Promptly after any record date is set pursuant to this Section 6.13, the Trustee shall cause notice of such record date and payment date to be given to the Company and to each Holder in the manner set forth in Section 13.02.
Section 6.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in aggregate principal amount of the outstanding Notes.
ARTICLE 7
TRUSTEE AND COLLATERAL AGENT
Section 7.01 Duties of Trustee and Notes Collateral Agent.
(a)If an Event of Default has occurred and is continuing, each of the Trustee and the Notes Collateral Agent shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)With respect to the Trustee, except during the continuance of an Event of Default, and at all times with respect to the Notes Collateral Agent:
(1)the duties of the Trustee and the Notes Collateral Agent shall be determined solely by the express provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and the Notes Collateral Agent need perform only those duties that are specifically set forth in this Indenture, the Collateral Documents and the Intercreditor Agreements and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee and the Notes Collateral Agent; and
(2)in the absence of bad faith on its part, the Trustee and the Notes Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and the Notes Collateral Agent and conforming to the requirements of this Indenture, the Collateral Documents and the Intercreditor Agreements. However, in the case of any such certificates or opinions which by any provision hereof or the Collateral Documents or the Intercreditor Agreements are specifically required to be furnished to the Trustee or the Notes Collateral Agent, as applicable, the Trustee or the Notes Collateral Agent, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)Neither the Trustee nor the Notes Collateral Agent may be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1)
this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2)neither the Trustee nor the Notes Collateral Agent shall be liable for any
error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved in a court of competent jurisdiction that the Trustee or the Notes Collateral Agent was negligent in ascertaining the pertinent facts;
(3)neither the Trustee nor the Notes Collateral Agent shall be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and
(4)no provision of this Indenture shall require the Trustee or the Notes Collateral Agent to expend or risk its own funds or otherwise incur any liability (financial or otherwise) in the performance of any of its duties hereunder and the Trustee and Notes Collateral
Agent shall not be required to take any action that, in their opinion or the opinion of its counsel, may be contrary to any Note Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Laws.
(d)Whether or not therein expressly so provided, every provision of this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable, that in any way relates to the Trustee or the Notes Collateral Agent is subject to paragraphs (a), (b) and (c) of this Section 7.01. (e)Neither the Trustee nor the Notes Collateral Agent shall (i) have any duty to take any discretionary action or to exercise any discretionary power, or (ii) be under any obligation to exercise any of the rights or powers under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements at the request or direction of any of the Holders unless such Holders have offered to the Trustee or the Notes Collateral Agent, as applicable, security or indemnity reasonably satisfactory to the Trustee or the Notes Collateral Agent (as applicable) against any loss, liability or expense (which may be greater in extent than that contained in the applicable Note Document and which may include payment in advance).
(f)Neither the Trustee nor the Notes Collateral Agent shall be liable for interest on any money received by it except as the Trustee or the Notes Collateral Agent may agree in writing with the Company. Money held in trust by the Trustee or the Notes Collateral Agent need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee and Notes Collateral Agent.
(a)Each of the Trustee and the Notes Collateral Agent may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. Neither the Trustee nor the Notes Collateral Agent need investigate any fact or matter stated in the document, but the Trustee and the Notes Collateral Agent, as applicable, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee or the Notes Collateral Agent, as applicable, shall determine in good faith to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b)Before the Trustee or the Notes Collateral Agent acts or refrains from acting, it may (but is not obliged to) require an Officer’s Certificate or an Opinion of Counsel or both subject to the other provisions of this Indenture. Neither the Trustee nor the Notes Collateral Agent shall be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee and the Notes Collateral Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)Each of the Trustee and the Notes Collateral Agent may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d)Neither the Trustee nor the Notes Collateral Agent shall be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture, the Collateral Documents or the Intercreditor Agreements.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or a Guarantor shall be sufficient if signed by an Officer of the Company or such Guarantor.
(f)Neither the Trustee nor the Notes Collateral Agent shall be deemed to have notice or knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee or the Notes Collateral Agent, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee or the Notes Collateral Agent, as applicable, at the Corporate Trust Office of the Trustee or the Notes Collateral Agent, as applicable, and such notice references the existence of a Default or Event of Default, the Notes and this Indenture.
(g)In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee or the Notes Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The rights, privileges, protections, immunities and benefits given to each of the Trustee and the Notes Collateral Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, each of the Trustee and the Notes Collateral Agent in each of its capacities hereunder and under the Collateral Documents and the Intercreditor Agreements, and by, the Agents and each other agent, custodian and other Person employed to act hereunder or thereunder.
(i)Neither the Trustee nor the Notes Collateral Agent shall at any time be under any duty or responsibility to any Holders to determine whether any Additional Amounts are payable and the amount thereof.
(j)The Trustee and the Notes Collateral Agent may request that the Company deliver an Officer’s Certificate setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, the Collateral Documents and the Intercreditor Agreements, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(k)Neither the Trustee nor the Notes Collateral Agent shall be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(l)Neither the Trustee nor the Notes Collateral Agent:
(1)shall be accountable for the use or application by any Person of disbursements properly made by the Trustee or the Notes Collateral Agent in conformity with the provisions of this Indenture, the Notes or the Collateral Documents or of moneys received from the Company or the Guarantors; or
(2)shall be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(m)The Notes Collateral Agent shall not be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other security documents pertaining to this matter nor shall it be obligated to make any investigation into, and
shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other security document pertaining to this matter.
(n)Beyond the exercise of reasonable care in the custody thereof, the Notes Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against any prior parties or any other rights pertaining thereto and the Notes Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
Section 7.03 Individual Rights of Trustee and Notes Collateral Agent.
The Trustee or the Notes Collateral Agent in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Company or any Affiliate of the Company with the same rights it would have if it were not Trustee or the Notes Collateral Agent.
However, in the event that the Trustee acquires a conflicting interest it must eliminate such conflict within 90 days or resign. The Trustee is also subject to Section 7.10.
Section 7.04 Disclaimer.
Neither the Trustee nor the Notes Collateral Agent shall be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreements, it shall not be accountable for the Company’s use of the proceeds from the Notes or any money paid to the Company or upon the Company’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or the Notes Collateral Agent, as the case may be, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication on the Notes.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee will mail or deliver by electronic transmission to each Holder a notice of the Default within 90 days after it occurs. Except in the case of an Event of Default specified in clauses (1) or (2) of Section 6.01(a), the Trustee may withhold from the Holders notice of any continuing Default if the Trustee determines in good faith that withholding the notice is in the interests of the Holders.
Section 7.06 [Reserved].
Section 7.07 Compensation and Indemnity.
(a)The Company and the Guarantors, jointly and severally, shall pay to the Trustee and the Notes Collateral Agent from time to time such compensation for its acceptance of this Indenture and services hereunder and under the Collateral Documents and the Intercreditor Agreements as the parties shall agree in writing from time to time. Neither the Trustee’s nor the Notes Collateral Agent’s compensation shall be limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee and the Notes Collateral Agent promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and the Notes Collateral Agent’s agents and respective counsel (as well as any notarial fees relating to the granting of any Spanish Public Document and registration fees, if any). The Trustee and the Notes Collateral Agent shall provide the Company reasonable notice of any expenditure not in the ordinary course of business.
(b)The Company and the Guarantors, jointly and severally, shall indemnify each of the Trustee, any predecessor Trustee, the Notes Collateral Agent and any predecessor Notes Collateral Agent and their agents for, and hold the Trustee and the Notes Collateral Agent harmless against, any and all loss, damage, claims, liability or expense (including reasonable attorneys’ fees and expenses and taxes (other than taxes based upon, measured by or determined by the income of the Trustee and the Notes Collateral Agent)) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder and under the Collateral Documents and the Intercreditor Agreements (including the reasonable costs and expenses of enforcing this Indenture, the Collateral Documents and the Intercreditor Agreements against the Company or any Guarantor (including this Section 7.07 and notarial fees relating to any Spanish Public Document, court clerk fees (procurador) (even if their intervention is not mandatory), court costs and any sworn translation costs and together with any applicable VAT)) or defending itself against any claim whether asserted by any Holder, the Company or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). Each of the Trustee and the Notes Collateral Agent shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Notes Collateral Agent to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee and the Notes Collateral Agent may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee or the Notes Collateral Agent through the Trustee’s or the Notes Collateral Agent’s own willful misconduct or gross negligence.
(c)The obligations of the Company and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee or the Notes Collateral Agent. (d)To secure the payment obligations of the Company and the Guarantors in this Section 7.07, the Trustee and the Notes Collateral Agent shall have a Lien prior to the Notes on all money or property held or collected by the Trustee and the Notes Collateral Agent, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
(e)When the Trustee and the Notes Collateral Agent incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(8) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Laws.
Section 7.08 Appointment of the Notes Collateral Agent.
(a)Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder), (i) pursuant to Article 2414-bis, third paragraph, of the Italian Civil Code, to the extent applicable, shall be deemed to have agreed and acknowledged the appointment of the Notes Collateral Agent and accepts and is bound by the appointment of the Notes Collateral Agent, to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil
Code, to the extent applicable, and, in any event, as mandatario con rappresentanza also pursuant to articles 1704 and 1723, second paragraph of the Italian Civil Code, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, and (ii) consented and agreed to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure and release of the Collateral and authorising the Notes Collateral Agent to enter into any Collateral Document on its behalf) as the same may be in effect or may be amended from time to time in accordance with its terms and authorises and directs the Notes Collateral Agent to enter into the Collateral Documents and to perform its obligations and exercise its rights thereunder in accordance therewith.
(b)The Trustee (acting on behalf and for the benefit of the Holders) hereby irrevocably and unconditionally appoints GLAS Americas LLC as Notes Collateral Agent (agent des sûretés), pursuant to articles 2488-6 to 2488-12 of the French Civil Code, in respect of the French Collateral Documents and the Collateral governed by French law in order to take, register, manage and enforce the Collateral created or purported to be created under the French Collateral Documents. As a result:
(3)the Notes Collateral Agent shall be the title owner (titulaire) of the guarantees and Collateral created or purported to be created under this Indenture and the rights and assets acquired by the Notes Collateral Agent in carrying out its functions shall form a dedicated estate, distinct from the Notes Collateral Agent’s own estate;
(4)in respect of the French Collateral Documents and the Collateral governed by French law, the Notes Collateral Agent shall act in its own name for the benefit of the Trustee (acting for the benefit of the Holders); and
(5)the Notes Collateral Agent shall identify itself as such when acting in
such capacity.
(c)The Notes Collateral Agent shall act in accordance with the powers given to it by law and by the Non-ABL Agreements. If at any time, the Notes Collateral Agent is required to take any action in respect of the French Collateral Documents and the Collateral governed by French law (i) which is outside the scope of the powers granted to it by law or (ii) at a time when its appointment under
Section 7.08(b) is terminated as a result of a pledge enforcement, then the Notes Collateral Agent shall act as agent (mandataire) of each relevant secured party (as mandant).
(d)The Notes Collateral Agent hereby accepts the appointments under Sections 7.08(b) and (c).
(e)The Notes Collateral Agent shall solely act in its capacity as Notes Collateral Agent or for itself (as secured party).
(f)Any change of Notes Collateral Agent appointed pursuant to this Section 7.08 shall be made in accordance with Section 7.08 or in accordance with article 2488-11 of the French Civil Code (remplacement judiciaire).
(g)The Trustee (acting on behalf and for the benefit of the Holders):
(6)confirms its approval of the French Collateral Documents and Collateral governed by French law and irrevocably authorizes, empowers and directs the Notes Collateral Agent to execute the French Collateral Documents and to take any steps, and gather any information, in connection with the preparation of the French Collateral Documents and the perfection, preservation and/or enforcement of the Collateral;
(7)irrevocably authorises, empowers and directs the Notes Collateral Agent to perform the duties and exercise the rights, powers and discretions that are specifically entrusted to it under the Non-ABL Agreements, together with any other rights, powers and discretions which are incidental thereto, and to give a good discharge for any moneys payable under the French Collateral Documents; and
(8)acknowledges and confirms that the Notes Collateral Agent is entitled to take any step to protect the interests of the Secured Parties; however, notwithstanding the provisions of article 2488-9 of the French Civil Code, the Notes Collateral Agent shall not be bound to make the filing of any proof of claim for the benefit of the Trustee (acting on behalf and for the benefit of the Holders), unless otherwise agreed between the Notes Collateral Agent and the Trustee.
(h)Notwithstanding any contrary provision in this agreement, or any other Non- ABL Agreements:
(9)the Notes Collateral Agent shall not hold the benefit of the French Collateral Documents on trust but as agent des sûretés;
(10)no French Guarantor shall undertake to pay any Parallel Debt and the French Collateral Documents shall not secure any Parallel Debt; and
(11)no appointment of additional collateral agent or delegation of powers by the Notes Collateral Agent shall be made in respect of the French Collateral Documents for those rights and duties which benefit to or are imposed on the Notes Collateral Agent by operation of articles 2488-6 to 2488-12 of the French Civil Code.
(i)The subscription or the acquisition of any Notes by any Holder shall constitute acceptance by such Holder of the appointment of the Notes Collateral Agent for French Law Collateral Documents under the Notes in accordance with the terms of such Section 7.08
Section 7.09 Replacement of Trustee or Notes Collateral Agent.
(a)A resignation or removal of the Trustee or the Notes Collateral Agent and appointment of a successor Trustee or a successor Notes Collateral Agent shall become effective only upon the successor Trustee’s or successor Notes Collateral Agent’s acceptance of appointment as provided in this Section 7.08. The Trustee or the Notes Collateral Agent may resign in writing at any time by giving 30 days’ prior notice of such resignation to the Company and be discharged from the trust hereby created by so notifying the Company in writing. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee or the Notes Collateral Agent by so notifying the Trustee, the Notes Collateral Agent and the Company in writing. The Company may remove the Trustee or the Notes Collateral Agent if:
(12)in the case of the Trustee, the Trustee fails to comply with Section 7.10;
(13)the Trustee or the Notes Collateral Agent, as the case may be, is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Laws;
(14)a receiver or public officer takes charge of the Trustee or the Notes Collateral Agent, as the case may be, or its property; or
(15)the Trustee or the Notes Collateral Agent becomes incapable of acting as Trustee or Notes Collateral Agent, respectively, hereunder.
(b)If the Trustee or the Notes Collateral Agent resigns or is removed or if a vacancy exists in the office of Trustee or the Notes Collateral Agent for any reason, the Company shall promptly appoint a successor Trustee or a successor Notes Collateral Agent, as the case may be. Within one year after the successor Trustee or successor Notes Collateral Agent takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the successor Trustee or the successor Notes Collateral Agent to replace it with another successor Trustee or another successor Notes Collateral Agent appointed by the Company.
(c)If a successor Trustee or a successor Notes Collateral Agent does not take office within 30 days after the retiring Trustee or retiring Notes Collateral Agent resigns or is removed, the retiring Trustee or retiring Notes Collateral Agent (at the Company’s expense), the Company or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or successor Notes Collateral Agent, as the case may be.
(d)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(e)A successor Trustee or successor Notes Collateral Agent shall deliver a written acceptance of its appointment to the retiring Trustee or retiring Notes Collateral Agent and to the Company. Thereupon, the resignation or removal of the retiring Trustee or retiring Notes Collateral Agent shall become effective, and the successor Trustee or successor Notes Collateral Agent shall have all the rights, powers and duties of the Trustee or the Notes Collateral Agent under this Indenture. The successor Trustee or successor Notes Collateral Agent shall mail a notice of its succession to Holders. The retiring Trustee or retiring Notes Collateral Agent shall promptly transfer all property held by it as Trustee or Notes Collateral Agent to the successor Trustee or successor Notes Collateral Agent; provided that all sums owing to the Trustee or the Notes Collateral Agent hereunder have been paid and such transfer shall be subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee or the Notes Collateral Agent pursuant to this Section 7.09, the Company’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee or retiring Notes Collateral Agent.
(f)As used in this Section 7.09, the term “Trustee” shall also include each Agent. Section 7.10 Successor by Merger, etc. If the Trustee or the Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the successor corporation or national banking association without any further act shall be the successor Trustee or successor Notes Collateral Agent, subject to Section 7.11. Section 7.11 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation or national banking association organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition.
Section 7.12 Collateral Documents; Intercreditor Agreements.
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and the Notes Collateral Agent, as the case may be, to execute and deliver each of the Collateral Documents and each Intercreditor Agreement (including joinder agreements thereto) and any other Collateral Documents in which the Trustee and/or the Notes Collateral Agent, as applicable, is named as a party, including any Intercreditor Agreement or Collateral Documents executed on or after the Issue Date and any amendments, joinders or supplements to any Intercreditor Agreement or Collateral Document permitted by this Indenture (expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of this Indenture, the Note Guarantees or any other document related thereto, all the above with express faculties of self-contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación))). It is hereby acknowledged and agreed that, in so doing, the Trustee and the Notes Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under the Intercreditor Agreements or any other Collateral Documents, the Trustee and the Notes Collateral Agent each shall have all of the rights, privileges, benefits, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
The Holders shall, if so requested by the Trustee in relation to any eventual enforcement of any Spanish Collateral Document, (i) grant a power of attorney in favor of the Trustee entitling it to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Collateral Document and (ii) notarize and apostille such power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain).
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may, at its option and at any time, elect to have either Section 8.02 or Section 8.03 applied to all outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this ARTICLE 8.
Section 8.02 Legal Defeasance and Discharge.
(a)Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to this Indenture, all outstanding Notes and Note Guarantees on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (1) and (2) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Guarantors (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(16)the rights of Holders to receive payments in respect of the principal, premium, if any, and interest on the Notes when such payments are due, solely out of the trust created pursuant to this Indenture referred to in Section 8.04; (17)the Company’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for Note payments held in trust;
(18)the rights, powers, trusts, duties and immunities of the Trustee, and the Company’s obligations in connection therewith; and
(b)Following the Company’s exercise of its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.
(c)If the Company exercises its Legal Defeasance option under this Section 8.02, the Liens on the Collateral will be released and the Note Guarantees in effect at such time will be automatically released. (d)Subject to compliance with this ARTICLE 8, the Company may exercise its Legal Defeasance option under this Section 8.02 notwithstanding the prior exercise of its Covenant Defeasance option under Section 8.03.
Section 8.03 Covenant Defeasance.
(a)Upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Company and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their respective obligations under the covenants contained in Sections 3.10, 4.03, 4.05, 4.06, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, 4.17, 4.18 and 5.01(a)(4)
with respect to the outstanding Notes, and the Guarantors shall be deemed to have been discharged from their obligations with respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.04 are satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, and such Notes shall be unaffected thereby. In addition, upon the Company’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(a)(3) that resulted solely from the failure of the Company to comply with Section 5.01(a)(4), Section 6.01(a)(4) (only with respect to covenants that are released as a result of such Covenant Defeasance), Section 6.01(a)(5) (only with respect to covenants that are released as a result of such Covenant Defeasance), 6.01(a)(6), 6.01(a)(7), 6.01(a)(8) (solely with respect to Significant Subsidiaries or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries) would constitute a Significant Subsidiary), 6.01(a)(9) and 6.01(a)(10), in each case, shall not constitute an Event of Default.
(b)If the Company exercises its Covenant Defeasance option under this Section 8.03, the Liens on the Collateral will be released and the Note Guarantees in effect at such time will be automatically released. Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)The following shall be the conditions to the exercise of either the Legal Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the Notes:
(20)the Company must irrevocably deposit with the Paying Agent, in trust, for the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination thereof, in amounts as will be sufficient without consideration of any reinvestment of interest, to pay the principal, premium, if any, and interest, if any, due on the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Company must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(21)in the case of Legal Defeasance, the Company has delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions,
(A)the Company has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling, or
(B)since the Issue Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders and beneficial owners of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(22)in the case of Covenant Defeasance, the Company has delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(23)no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) and the deposit will not result in a breach or violation of, or constitute a default under, the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures, the 2023 Credit Facility, the 2024 Notes Indenture or any other material agreement or material instrument (other than this Indenture) to which the Company or any Guarantor is a party or by which the Company or any Guarantor is bound;
(24)the Company has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company, any Guarantor or others;
(25)the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; and
(26)the Company has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be (which instructions may be contained in the Officer’s Certificate referred to in clause (6) above).
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
(a)Subject to Section 8.06, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest on the Notes, but such money need not be segregated from other funds except to the extent required by law.
(b)The Company will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders. (c)Anything in this ARTICLE 8 to the contrary notwithstanding, the Trustee will deliver or pay to the Company from time to time upon the request of the Company any money or Government Securities held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Company.
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Company on its request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in The New York Times or The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Company.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or Government Securities in accordance with Section 8.02 or Section 8.03, as the case may be, by reason of any order or
judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s and the Guarantors’ obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or Section 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or Section 8.03, as the case may be; provided that, if the Company makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
(a)Notwithstanding Section 9.02, without the consent of any Holder, the Company, the Guarantors (except that no existing Guarantor will be required to execute any amendment or supplement of this Indenture that solely relates to changes described in Section 9.01(a)(5)), the Trustee and the Notes Collateral Agent may amend this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements (subject to the terms of the Intercreditor Agreements) to:
(27)cure any ambiguity, omission, defect or inconsistency;
(28)provide for the assumption by a successor entity of the obligations of the Company or any Guarantor under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements in accordance with Section 5.01;
(29)provide for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes; provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;
(30)comply with the rules of any applicable Depositary;
(31)add Guarantors with respect to the Notes or release a Guarantor from its obligations under its Note Guarantee or this Indenture, in each case, in accordance with the applicable provisions of this Indenture;
(32)secure the Notes and the Note Guarantees;
(33)to confirm and evidence the release, termination or discharge of any Lien securing the Notes or the Note Guarantees in accordance with the terms of this Indenture, the Collateral Documents or Intercreditor Agreements;
(34)add covenants of the Company and its Subsidiaries or Events of Default for the benefit of Holders or to make changes that would provide additional rights to the Holders or to surrender any right or power conferred upon the Company or any Guarantor;
(35)make any change that does not materially adversely affect the legal rights under this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements of any Holder;
(36)comply with any requirement of the SEC in connection with any qualification of this Indenture under the Trust Indenture Act;
(37)evidence and provide for the acceptance of an appointment of a successor Trustee (provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture) or successor notes collateral agent;
(38)conform the text of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements to any provision of the “Description of the Exchange Notes” section of the Offering Memorandum to the extent that such provision in such “Description of the Exchange Notes” section was intended to be a verbatim recitation of a provision of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements, as confirmed in an Officer’s Certificate delivered to the Trustee; or
(39)make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes; provided, however, that (A) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (B) such amendment does not materially and adversely affect the rights of Holders to transfer Notes.
(b)The Holders of the Notes will be deemed to have consented for purposes of the Collateral Documents and the applicable Intercreditor Agreements to any of the following amendments, waivers and other modifications to the Collateral Documents and the applicable Intercreditor Agreements:
(40)(A) to add other parties (or any authorized agent thereof or trustee therefor) holding Secured Indebtedness that is Incurred in compliance with the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures, the 2023 Credit Facility, the 2024 Notes Indenture, the New 2L Notes Indenture and the Collateral Documents and (B) to establish the priority of the Liens on any Collateral securing such Secured Indebtedness under the applicable Intercreditor Agreement with the Liens on such Collateral securing the Obligations under this Indenture, the Notes and the Note Guarantees, and (C) to establish that the Liens on any ABL Priority Collateral securing any Indebtedness replacing the ABL Facility permitted to be Incurred under this Indenture shall be senior to the Liens on such ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Note Guarantees, and that the Liens on any Non-ABL Priority Collateral securing any such Indebtedness shall be junior to the Liens on such Non-ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Note Guarantees, all on the terms provided for in the ABL Intercreditor Agreement in effect immediately prior to such amendment or other modification; and all proceeds of the Collateral shall be payable to the Notes Collateral Agent and such representatives for any other Pari Passu Secured Indebtedness then outstanding on a pro rata basis based on the aggregate outstanding principal amount of Obligations under this Indenture and the Notes and under any other Pari Passu Secured Indebtedness then outstanding, all on the terms provided for in the applicable Intercreditor Agreement in effect immediately prior to such amendment;
(41)to effectuate the release of assets included in the Collateral from the Liens securing the Notes in accordance with this Indenture or the Collateral Documents if those assets are (A) owned by a Guarantor and that Guarantor is released from its Note Guarantee in accordance with the terms of this Indenture or (B) sold, transferred or otherwise disposed of in a transaction permitted or not otherwise prohibited by this Indenture;
(42)to establish that the Liens on any Collateral securing any Indebtedness refinancing any Secured Indebtedness permitted to be Incurred in accordance with Section 4.09 shall rank pari passu with the Liens on such Collateral securing the Obligations under such replaced Secured Indebtedness and otherwise conform to the Lien priorities in any applicable Intercreditor Agreement; and
(43)upon any cancellation or termination of the ABL Facility without a replacement thereof, to establish that the ABL Priority Collateral (in addition to the Non-ABL Priority Collateral) shall secure the Obligations under this Indenture, the Notes and the Note Guarantees on the same basis as the Non-ABL Priority Collateral pursuant to the Lien priorities in any applicable Intercreditor Agreement, subject to the terms of the applicable Intercreditor Agreements in effect immediately prior to such amendment or other modification.
(c)Upon the request of the Company, and upon receipt by the Trustee of the documents described in Section 13.04, the Trustee and the Notes Collateral Agent shall join with the Company and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but neither the Trustee nor the Notes Collateral Agent shall be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders.
(a)Except as provided in Section 9.01 and this Section 9.02 (and subject to the terms of the Intercreditor Agreements), the Company, the Guarantors, the Trustee and the Notes Collateral Agent may amend or supplement this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) and, subject to Section 6.04 and Section 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with the purchase of, or tender offer or exchange offer for, Notes). Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
(b)Upon the request of the Company, and upon the filing with the Trustee and the Notes Collateral Agent of evidence satisfactory to the Trustee and the Notes Collateral Agent of the consent of the Holders as aforesaid, and upon receipt by the Trustee and the Notes Collateral Agent of the documents described in Section 7.02 and Section 13.04, the Trustee and the Notes Collateral Agent shall join with the Company and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s or the Notes Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case each of the Trustee and the Notes Collateral Agent may in their discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
(c)It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver. It shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Company will send to the Holders a notice briefly describing such amendment, supplement or waiver. However, any failure of the Company to send such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of any such amendment, supplement or waiver.
(e)Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder): (44)reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(45)reduce the stated rate of interest or extend the stated time for payment of interest on any Note;
(46)reduce the principal of or extend the Stated Maturity of any Note;
(47)waive a Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(48)reduce the premium payable upon the redemption or repurchase of any Note or change the date on which any Note may be redeemed or repurchased as described in Section 3.07, Section 4.15 and Section 4.16 whether through an amendment or waiver of provisions in the covenants, definitions or otherwise (except amendments to the definitions of “Asset Disposition” and “Change of Control”);
(49)make any Note payable in a currency other than that stated in the Note;
(50)amend the contractual right expressly set forth in this Indenture or the Notes of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
(51)make any change in the amendment or waiver provisions which require each Holder’s consent;
(52)modify the Note Guarantees in any manner materially adverse to the Holders;
(53)modify or change any provision of this Indenture, any Intercreditor Agreement or the Collateral Documents that (i) adversely affects the ranking as to right of payment (it being understood that the “right of payment” here refers to contractual ranking), Lien priority or payment priority, (ii) has the effect of permitting the creation of any “unrestricted subsidiary” or similar Subsidiary that is not subject to ARTICLE 4 or Section 6.01 of this Indenture or (iii) has the effect of permitting (to the extent not otherwise permitted by the terms of this Indenture as in effect on the Issue Date) the Incurrence of additional Indebtedness in the form of “additional notes” for the purpose of influencing voting thresholds;
(54)modify or change any provision in this Indenture or any Intercreditor Agreement relating to the payment terms or application of proceeds in connection with the Notes, including any payment or application of proceeds waterfalls; or
(55)release all or substantially all of the Collateral or the Guarantees.
(f)In addition, and subject to Section 9.02(e)(10), without the consent of Holders of 66⅔% in aggregate principal amount of the Notes outstanding, no amendment, supplement or waiver may modify any Collateral Document or the provisions in this Indenture relating to the Notes dealing with the Collateral Documents in any matter, taken as a whole, materially adverse to the Holders or otherwise release Collateral in excess of $50.0 million from the Liens securing the Notes other than in accordance with this Indenture, the Collateral Documents and the Intercreditor Agreements. Notwithstanding anything to the contrary herein, to the extent, and solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities, in each case with respect to the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the New 2L Notes, may be released with the consent of (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Facility, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the 2025 Credit Facility, and (iii) holders holding in excess of 66 2/3% of the aggregate principal amount of the outstanding 2025 Notes, solely in the event that such lenders and holders determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors. Upon and simultaneously with such release, the priority of Liens on the pledged equity of Diebold Germany shall automatically be changed such that the Lien in favor of the Superpriority Credit Facility is senior to the Lien in favor of the 2025 Credit Facility, the 2025 Notes and (for the avoidance of doubt) the New 2L Notes (it being understood that the Lien on the pledged equity of Diebold Germany securing the New 2L Notes shall at all times be junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes); provided that, no such release will be effective until the applicable proceeding is actually commenced. In addition, and notwithstanding the foregoing, (i) additional Indebtedness that may be secured by Liens senior to the Liens securing the 2025 Credit Facility and the 2025 Notes may be permitted with the consent of Holders holding at least 66 2/3% of the aggregate principal amount of the Notes outstanding under this Indenture and (ii) any breach of the Company’s obligations under Section 4.18 may only be waived with the consent of Holders holding at least 60.1% of the aggregate principal amount of Notes outstanding under this Indenture (other than with respect to the date milestones in Section 4.18(a), which, if the Company has exercised reasonable best efforts to meet such milestones, may be waived for up to 15 days with the consent of Holders holding a majority of the aggregate principal amount of Notes outstanding under this Indenture), provided that, with respect to this subclause (ii), any such waiver or consent is valid only if a corresponding waiver or consent has been granted by each of the Superpriority Credit Facility and the 2025 Credit Facility (and, for the avoidance of doubt, in accordance with the terms of the 2025 Euro Notes Indenture), in accordance with their respective terms. In addition, without the consent of Holders of 75% in aggregate principal amount of the Notes outstanding, no amendment, supplement, or waiver may modify or waive any of the Guarantor Release Protection Provisions.
(g)A consent to any amendment, supplement or waiver of this Indenture, the Notes or the Note Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.
Section 9.03 [Reserved].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date
the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver that is effective in accordance with its terms and thereafter binds every Holder.
(b)The Company may, but shall not be obligated to, fix a record date pursuant to Section 1.04 for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver.
Section 9.05 Notation on or Exchange of Notes.
(a)The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Company in exchange for all Notes may issue and the Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
(b)Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee and Notes Collateral Agent to Sign Amendments, etc.
(a)The Trustee or the Notes Collateral Agent, as the case may be, shall sign any amendment, supplement or waiver to this Indenture authorized pursuant to this ARTICLE 9 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Notes Collateral Agent, as the case may be. In executing any amendment, supplement or waiver to this Indenture, the Trustee and the Notes Collateral Agent shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the valid and binding obligation of the Company and any Guarantor party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
(b)The Notes Collateral Agent shall sign any amendment, supplement, consent or waiver authorized pursuant to any of the Collateral Documents or Intercreditor Agreements in accordance with the terms thereof (including, without limitation, without the further consent or agreement of the Holders if so provided in such Collateral Document or the Intercreditor Agreements or otherwise in accordance with Section 9.01(b) of this Indenture) if the amendment, supplement, consent or waiver does not adversely affect the rights, duties, liabilities or immunities of the Notes Collateral Agent. In executing any amendment, supplement, consent or waiver to any of the Collateral Documents or the Intercreditor Agreements, the Notes Collateral Agent shall receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement, consent or waiver is authorized or permitted by the applicable Collateral Document and/or the Intercreditor Agreements, as the case may be, and complies with the provisions thereof.
Section 9.07 Payments for Consent.
The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to all Holders and is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment; provided that this Section 9.07 shall not be breached if such consents, waivers or
amendments are sought in connection with an exchange offer where participation in such exchange offer is limited to Holders who are (i) “qualified institutional buyers,” within the meaning of Rule 144A, (ii) institutional “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act, or (iii) non-U.S. persons within the meaning of Regulation S then such consideration need only be offered to all Holders to whom the exchange offer is made and to be paid to all such Holders that consent, waive or agree to amend in such time frame.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this ARTICLE 10 and the Collateral and Guarantee Requirements, each of the Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees, on a senior basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Company hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other Obligations of the Company to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise collectively, the “Guaranteed Obligations.” Failing payment by the Company when due of any amount so Guaranteed or any performance so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b)The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first against the Company, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 10.06.
(c)Each of the Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(d)If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the
one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations Guaranteed hereby may be accelerated as provided in ARTICLE 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in ARTICLE 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
(f)Subject to Section 11.07(b), each Note Guarantee shall remain in full force and effect and continue to be effective should any petition or proceeding be filed by or against the Company or any Guarantor for liquidation or reorganization, should the Company or any Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver, trustee, interim receiver, monitor or other similar official be appointed for all or any significant part of the Company’s or any Guarantor’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Note Guarantees, whether as a “voidable preference,” “fraudulent transfer,” “transfer at undervalue” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g)In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h)Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(i)The Note Guarantees will be secured by Liens, with the priority of such Liens conforming to the Lien priorities in any applicable Intercreditor Agreement, subject to Permitted Liens, on the Collateral of each applicable Guarantor (which Collateral will also secure the ABL Facility, the Superpriority Credit Facility, the New 2L Notes, the 2025 Credit Facility, the 2025 Euro Notes and, other than with respect to the Released Domestic Collateral and the Foreign Collateral, the 2023 Credit Facility, with the priority of such Liens in each case conforming to the Lien priorities in any applicable Intercreditor Agreement).
(j)Notwithstanding anything to the contrary herein, with respect to any Covered Guarantor that is restricted or prohibited from Guaranteeing the Notes on the Issue Date due to applicable works council or similar ongoing processes, such Covered Guarantor will promptly execute a supplemental indenture following the completion of such process to provide a Guarantee of the Notes to the extent permitted following such processes and required by the terms of this Indenture.
(k)For the avoidance of doubt, no French Guarantor shall be under any obligation to provide a Note Guarantee or to grant a security interest on any of its assets to secure such Note Guarantee if it is determined by such French Guarantor that such Note Guarantee or the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered) where such opinion has not been delivered (or is not deemed delivered).
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a preference, fraudulent conveyance, fraudulent transfer or a transfer at undervalue for purposes of Bankruptcy Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this ARTICLE 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.
For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Indenture, the Notes or any Note Guarantee (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
If any provision of this Indenture, the Notes, any Note Guarantee or other obligations arising pursuant to this Indenture would oblige any Canadian Note Party to make any payment of interest or other amount payable to any Holder in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Holder of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Holder of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Holder which would constitute interest for purposes of section 347 of the Criminal Code (Canada).
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Holder shall have received an amount in excess of the maximum permitted by section 347 of the Criminal Code (Canada), the applicable Canadian Note Party shall be entitled to obtain reimbursement from such Holder in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such Holder to such Canadian Note Party.
Each Guarantor that makes a payment under its Note Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment, determined in accordance with GAAP.
In particular,
(a)the Note Guarantee granted by any German Guarantor and of any payment obligations (together, the "Enforcement of Claims") are restricted if and to the extent (i) the enforcement proceeds of an Enforcement of Claims are applied in satisfaction of any liability of such German
Guarantor's direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (other than the liabilities of any Subsidiary of the German Guarantor) and (ii) such enforcement would cause the amount of the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) Net Assets, as adjusted pursuant to the following provisions, to fall below the amount of its registered share capital (Stammkapital) (Begründung einer Unterbilanz) or to increase any already existing capital impairment (Vertiefung einer Unterbilanz) or a violation of sections 30 and 31 of the German Limited Liability Company Act (GmbHG), (each such event is hereinafter referred to as a "Capital Impairment"). For the purposes of the calculation of a Capital Impairment, the following balance sheet items shall be adjusted as follows:
(i)the amount of any increase of the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) registered share capital that has been effected after the date of this Agreement (or, if at a later point, the accession thereto by the relevant German Guarantor as a Guarantor) effected without prior written consent of the Trustee shall be deducted from the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) registered share capital;
(ii)loans provided to the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) the Company or any of its Subsidiaries shall be disregarded if and to the extent such loans are subordinated or are considered subordinated by operation of law at least into the rank pursuant to Section 39 para 2 of the German Insolvency Code (Insolvenzordnung);
(iii)loans or other contractual financial liabilities incurred in violation of the provisions of the Note Documents shall be disregarded;
(iv)assets of the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) shall be disregarded to the extent profits would be prohibited from distribution pursuant to section 268 paragraph (8) of the German Commercial Code (Handelsgesetzbuch); and
(v)the amount of non-distributable assets according to section 253 paragraph (6) or section 272 paragraph (5) of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets.
(vi)the costs of any Auditor's Determination (as defined below) shall be taken into account in calculating the Net Assets.
In a situation where a Capital Impairment would occur in relation to a German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) after satisfaction (in whole or in part) of the relevant payment demand under this Note Guarantee or this Indenture, the German Guarantor shall without undue delay (but no later than eight (8) weeks after occurrence of such situation, unless an extension of such period is granted by the Trustee, to the extent legally permitted, dispose of all assets which are not necessary for its business (nicht betriebsnotwendig) where the relevant assets are shown in the balance sheet of the German Guarantor with a book value significantly lower than the market value of such assets (each such asset a "Relevant Asset"), unless such disposal would not be commercially justifiable. The relevant German Guarantor shall, within ten (10) Business Days upon receipt of a written request from the Trustee relating to any Relevant Asset which is not being sold pursuant to the preceding sentence, provide the Trustee with reasonably detailed information as to why it considers the sale of such Relevant
Asset not to be commercially justifiable. In the latter case, the relevant German Guarantor and the Trustee will liaise with each other and the relevant German Guarantor shall use its best efforts to make further attempts to dispose of such Relevant Asset on more beneficial terms and keep the Trustee informed about its progress on a continuous basis.
The limitation pursuant to this Section 10.02(a) shall apply, subject to the following requirements, if following a demand for payment by the Trustee under this Note Guarantee or this Indenture, the German Guarantor notifies the Trustee ("Management Notification") within 15 Business Days upon receipt of the relevant demand that a Capital Impairment would occur (setting out in reasonable detail to what extent a Capital Impairment would occur and providing an estimation of the net proceeds realization along with the calculations / information on which such estimate is based, or other measures undertaken in accordance with the mitigation provisions set out above). If the Management Notification is contested by the Trustee, the German Guarantor undertakes (at its own cost and expense) to arrange for the preparation of a balance sheet by its auditors in order to have such auditors determine whether (and if so, to what extent) any payment under this Note Guarantee or this Indenture would cause a Capital Impairment (the "Auditor's Determination"). The Auditor's Determination shall be prepared, taking into account the adjustments set out above in relation to the calculation of a Capital Impairment, by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. The German Guarantor shall provide the Auditor's Determination to the Trustee within twenty-five (25) Business Days from the date on which the Trustee contested the Management Notification in writing. The Auditor's Determination shall be binding on the German Guarantor and the Secured Parties.
Notwithstanding the above, the provisions of this Section 10.02(a) shall not apply:
(i)if the German Guarantor is (i) party as dominated entity (beherrschtes Unternehmen) of a domination agreement (Beherrschungsvertrag) and/or a profit and loss transfer agreement (Gewinnabführungsvertrag) pursuant to section 30 para 1 sentence 2 of the German Limited Liability Company Act (GmbHG), and (ii) it is to be expected (based on information available to the managing directors of the German Guarantor, interpreted by applying the due care of a prudent businessman (Sorgfalt eines ordentlichen Geschäftsmannes)) that the relevant German Guarantor will be able to recover the annual loss (Jahresfehlbetrag) from the relevant dominating entity pursuant to Section 302 of the German Stock Corporation Act (Aktiengesetz) after the Note Guarantee or other payment obligation under this Indenture has been enforced against the German Guarantor or the German Federal Court of Justice has ruled that only limb (a) is required to avoid a violation of sections 30, 31 German Limited Liability Company Act (GmbHG);
(ii)if the German Guarantor has a recourse right (Rückgriffsanspruch) towards its direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) which is fully recoverable (werthaltig) at the time of the Enforcement of Claims; or to any amounts borrowed under the Note Documents to the extent the proceeds of such borrowing are on- lent to the German Guarantor or its Subsidiaries to the extent that any amounts so on-lent are still outstanding at the time the relevant demand is made against the German Guarantor;
(b)with respect to any French Guarantor, notwithstanding any other provision of this Indenture, the Note Guarantee and the obligations and liabilities of any French Guarantor under this Note Guarantee are subject to the following limitations:
(i)the obligations and liabilities of any French Guarantor under this Indenture and the Note Guarantee will not include any obligation or liability which, if incurred, would constitute financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/or a misuse of assets and/or abuse of power, within the meaning of articles L. 241-3, L. 242-6 and L. 244-1 of the French Commercial Code or any other law or regulation having the same effect or any interpretation of such laws and/or regulations by the French courts (as the case may be);
(ii)the obligations and liabilities of any French Guarantor under this Indenture and the Note Guarantee shall be limited at any time to:
(1)in respect of the Guaranteed Obligations under this Note Guarantee and of any other party hereto which is its direct or indirect Subsidiary, all amounts which will be due by such party (which is its direct or indirect Subsidiary) as issuer (if it is not a French party), or as issuer and/or subject to the provisions of the paragraph below, as Guarantor (as long such party is a French Guarantor) under this Note Guarantee and any other loan, credit and guarantee documents to which it is a party; and
(2)in respect of the Guaranteed Obligations under this Note Guarantee and of any party hereto which is not a direct or indirect Subsidiary of the relevant French Guarantor (a “Guaranteed Obligor”), the aggregate of all amounts borrowed directly or indirectly by any such Guaranteed Obligor under this Note Guarantee to the extent any such amount(s) will have been on-lent (directly or indirectly) or otherwise made available to the relevant French Guarantor or its direct or indirect Subsidiaries (including, but not limited to, by way of intercompany loan agreements or similar arrangements whether direct or indirect) plus any accrued and unpaid interest, costs and fees in respect of or attributable to that on-lending, and which will be outstanding on the date a payment is to be made in respect of the Guaranteed Obligations of the relevant Guaranteed Obligor by the relevant French Guarantor under this Note Guarantee (it being specified that any payment made by the French Guarantor under this Note Guarantee in respect of that Guaranteed Obligor’s payment obligations under this Note Guarantee shall automatically extinguish, pro tanto, the payment obligations under the relevant intercompany loan agreements or similar arrangements referred to above).
(iii)For the purposes of this Section “Subsidiary” means, in relation to any company, another company which is controlled by it within the meaning of article L. 233-3 of the French Commercial Code.
(iv)It is acknowledged that such French Guarantor is not acting jointly and severally with the other Guarantors and shall not be considered as “co-débiteur solidaire” as to their obligations pursuant to the guarantee granted in accordance with the provisions of this Note Guarantee.
(c)the Guarantee of an Italian Guarantor shall not exceed at any time the sum of: (x) the aggregate principal amount of any amount made available to the relevant Italian Guarantor (or any of its
direct or indirect Subsidiaries pursuant to article 2359, paragraph 1, numbers 1 and/or 2, of the Italian Civil Code) by using the proceeds of the Notes; and (y) the aggregate principal amount of any intercompany loans or other financial support in any form (such term, for the avoidance of doubt, not including equity contributions), advanced or made available to such Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359 of the Italian Civil Code) by the Company or any Guarantor (whether directly or indirectly) on or following the Issue Date, less the aggregate at that time of (I) all amounts paid by such Italian Guarantor under this Note Guarantee and (II) all amounts recovered by any secured parties under any other security document under which the Italian Guarantor acts as security provider of the relevant collateral. Notwithstanding any provision to the contrary herein, (A) if and to the extent the guarantee of the Italian Guarantor under this Note Guarantee in respect of the Notes and/or this Indenture would result in a breach of any Italian provisions relating to financial assistance, including articles 2358 and 2474, as applicable, of the Italian Civil Code, applicable to that Italian Guarantor, the Italian Guarantor will be deemed to have no liability hereunder and the Note Guarantee of such Italian Guarantor in respect thereof shall not be in force and effect ab initio, provided that the Note Guarantee given by the Italian Guarantor will not guarantee any amount under the Notes whose purpose or actual use is, directly or indirectly, to finance (and/or refinance) (i) the acquisition of the Italian Guarantor (and/or of any Controlling Person of the Italian Guarantor) and/or (ii) the subscription of an equity interest of the Italian Guarantor (and/or of any Controlling Person of the Italian Guarantor) and/or (iii) the payment of any interest, fees, costs and expenses, stamp, registration or other taxes in connection therewith and/or (iv) any existing indebtedness incurred for the purposes of (i), (ii) and (iii) above; and (B) in order to comply with the mandatory provisions of Italian law in relation to (x) maximum interest rates (including the Italian Usury Law and article 1815 of the Italian Civil Code), and (y) capitalization of interests (including article 1283 of the Italian Civil Code and article 120 of the Italian Legislative Decree No, 385 of 1 September 1993), the obligations of the Italian Guarantor under this Note Guarantee shall not include, and shall not extend to (1) any interest qualifying as usurious pursuant to the Italian Usury Law and (2) any interest on overdue amounts compounded in violation of the provisions set forth by article 1283 of the Italian Civil Code and/or article 120 of the Italian Banking Law, respectively.
Without prejudice to what stated under item (b)(ii) above, in any event, (i) pursuant to article 1938 of the Italian Civil Code, the maximum amount that an Italian Guarantor may be required to pay in respect of its obligations under this Note Guarantee shall not exceed Euro 4,000,000.00 to be considered as a global cap applicable, without duplication, to such Italian Guarantor’s obligations under this Note Guarantee and any security and/or guarantee granted by such Italian Guarantor to secure and/or guarantee the obligations of any entity other than such Italian Guarantor under any of the Superpriority Credit Facility, the ABL Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2025 Indentures or the 2024 Notes Indenture, the Notes or this Indenture, provided that such cap will not apply to any own debt obligations of such Italian Guarantor as borrower under the ABL Facility; (ii) the aggregate amount of interest guaranteed by such Italian Guarantor in respect of any Notes will be at any time equal to the interest then outstanding in respect of the principal amount of any Notes guaranteed by such Italian Guarantor at that time; and (iii) it is hereby expressly acknowledged and agreed that, notwithstanding any provision to the contrary under this Agreement, in no event parallel debt or trust provisions under this Agreement shall apply to any Collateral or guarantee granted by such Italian Guarantor.
Moreover, for the purposes of the transparency provisions set forth in the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti) applicable to transactions and banking and financial services issued by Bank of Italy, as following amended and integrated, each Italian Guarantor hereby acknowledges and confirms that:
(i) each of them has appointed and has been assisted by its respective legal counsels in connection with the negotiation, preparation and execution of this Indenture; and this Indenture, and all of its terms and conditions
have been specifically negotiated in all their aspects (oggetto di trattativa individuale) between the parties hereof.
(d)Diebold Nixdorf S.L. will not cover those obligations or liabilities which, if Guaranteed, will constitute an infringement of Spanish financial assistance laws in accordance with Articles 143 and 150 of the Spanish Companies Act or in any other legal provision that may substitute such Articles 143 and/or 150 or be applicable to any Spanish Guarantor in respect of such financial assistance.
(e)any Guarantor incorporated under the laws of Sweden under this Indenture (including the obligation to indemnify) shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) in force from time to time regulating unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act and financial assistance and other prohibited loans, prohibited security and prohibited guarantees pursuant to Chapter 21, Sections 1 to 3 and 5, and it is understood that the obligations and liabilities of each Guarantor incorporated in Sweden under this Indenture only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.
(f)notwithstanding any provision to the contrary in this Indenture, the liability of the Belgian Guarantor expressed to be assumed in Section 10.01 for the obligations of the Company, which is not a direct or indirect Subsidiary of the Belgian Guarantor will be limited to the greater of: (a) an amount equal to 90 percent of the Net Assets of the Belgian Guarantor calculated on the basis of its latest available annual financial statements at the date of this Indenture and (b) an amount equal to 90 percent of the Net Assets of that Belgian Guarantor at the date of the most recent audited annual financial statements of that Belgian Guarantor available on the date on which the relevant demand under this Section 10 is made; and (c) the highest amount of On-Lending to that Belgian Guarantor and its subsidiaries outstanding at any time between the date of this Indenture and the date on which a demand is made against it hereunder (the “Belgian Maximum Guaranteed Amount”). For the avoidance of doubt, any guarantee granted by a Belgian Guarantor shall not include any liability to the extent it would constitute unlawful financial assistance, within the meaning of article 5:152, 6:118 and 7:227 of the Belgian Companies and Associations Code (or any equivalent and applicable provisions in any relevant jurisdiction). The limitations set out in this Section 10.02 shall apply mutatis mutandis to any Lien granted by the relevant Belgian Guarantor and to any guarantee, undertaking, obligation, indemnity and payment, including (but not limited to) distributions, cash sweeps, credits, loans and set-offs, pursuant to or permitted by the loan documents and made by that Belgian Guarantor. For the avoidance of doubt, any payment made by a Belgian Guarantor in respect of the Company, which is not a direct or indirect Subsidiary of the Belgian Guarantor shall reduce the Belgian Guaranteed Maximum Amount.
(g)the Guarantee granted by any Polish Guarantor will be subject to the following limitations: (i) the guarantee will not apply to any liability to the extent that it would result in breaching Article 189 § 2 of the Polish Commercial Companies Code in the form of reduction of the assets required for the coverage of the total nominal capital or the repayment of capital as prohibited under Article 189 § 2 of the Polish Commercial Companies Code or similar provisions of the Polish Commercial Companies Code; and (ii) to the extent the liability of a Polish Guarantor under this Indenture is considered a financial liability within the meaning of Article 11 § 2 of the Polish Insolvency Act dated 28 February 2003, the liability of a Polish Guarantor shall be limited so that it does not result in the insolvency (niewypłacalność) of a Polish Guarantor within the meaning of Article 11 § 2 of the Polish Insolvency Act or in the insolvency within the meaning of Article 6 section 3 of the Polish Restructuring Act. The limitation as described above in this Section will not apply if one or more of the following circumstances occur: (i) any Event of Default is continuing, irrespective of whether such Event of Default occurs before
or after a Polish Guarantor becomes insolvent (niewypłacalny) within the meaning of Article 11 paragraph 2 of the Polish Insolvency Act or Article 6 of the Polish Restructuring Act; (ii) the liabilities of a Polish Guarantor (other than those under this Note Guarantee) result in its insolvency (niewypłacalność) within the meaning of Article 11 paragraph 2 of the Polish Bankruptcy Law or Article 6 of the Polish Restructuring Act; or (iii) Polish law is amended in such a manner that over-indebtedness (nadmierne zadłużenie) defined in Article 11 paragraph 2 of the Polish Insolvency Act (as in force on the date of this Indenture) no longer gives grounds for declaration of bankruptcy or obliges the representatives of a Polish Guarantor to file for bankruptcy.
Section 10.03 Execution and Delivery.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer or person holding an equivalent title. (b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. (c)If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantees shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.11, the Company shall cause any newly created or acquired Subsidiary to comply with the provisions of Section 4.11 and this ARTICLE 10, to the extent applicable.
Section 10.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Company in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Company under this Indenture or the Notes shall have been paid in full.
Section 10.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the Guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 10.06 Release of Note Guarantees.
(a)A Note Guarantee by a Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Guarantor, the Company or the Trustee shall be required for the release of such Guarantor’s Note Guarantee, upon:
(56)(A) any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, amalgamation, consolidation or otherwise) of the Capital Stock of such Guarantor after
which the applicable Guarantor is no longer a Subsidiary, which sale, assignment, transfer, conveyance, exchange or other disposition is made in compliance with the provisions of this Indenture;
(A)[reserved];
(B)[reserved];
(C)the consent of the Holders in accordance with ARTICLE 9;
(D)the Company’s exercise of its Legal Defeasance option or Covenant Defeasance option in accordance with ARTICLE 8; or (E)the satisfaction and discharge of the Company’s obligations under this Indenture in accordance with the terms of this Indenture; and
(57)in the case of clauses (a)(1)(A), (D), (E) and (F) only, such Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction or release have been complied with.
(b)At the written request of the Company, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release and discharge in respect of the applicable Guarantee.
(c)Notwithstanding the foregoing, in the event that any released Guarantor (in the case of Section 10.06(a)(1)( D)) thereafter borrows money or Guarantees any other Indebtedness for borrowed money of the Company or any Guarantor, the terms of the consent described in Section 10.06(a)(1)(D) may provide that such former Guarantor shall again provide a Note Guarantee if required pursuant to Section 4.11.
Section 10.07 Spanish Law Particularities.
(a)Each Spanish Guarantor acknowledges that the Guaranteed Obligations under this Indenture shall constitute, when due and payable under the relevant agreements from which they arise, liquid, due and payable obligations of such Spanish Guarantor (deuda líquida y exigible).
(b)Each Spanish Guarantor acknowledges that the Note Guarantee provided by it under this Article 10 must be construed as a first demand guarantee (garantía a primera demanda) and not as a guarantee (fianza) of those detailed in Section 1,830 et seq. of the Spanish Civil Code, and, therefore, the benefits of preference (excusión), order (orden) and division (división) shall not be applicable.
(c)For the purposes of articles 399.2, 627 and 686.2 of the Spanish Insolvency Law, each Spanish Guarantor shall remain bound by this Note Guarantee in the event that the Company or any Guarantor hereto reaches an arrangement with its creditors in the course of insolvency proceedings or similar. In particular, no Spanish Guarantor may benefit from potential privileges with regard to the Note Guarantee (such as partial release of debt, stays or others) that have been provided for in the arrangement the Company or any Guarantor hereto may have reached with their creditors (unless all of the Holders of the Notes have expressly voted in favour of the approval of the arrangement) and the Note Guarantee shall therefore continue on the same terms and in full force and effect with respect to the Guaranteed Obligations. In the event of insolvency of the Spanish Guarantor, the Holders of the Notes and/or the Trustee shall also
be entitled to request the inclusion on the list of creditors of the then outstanding unpaid amounts following the enforcement of the Note Guarantee.
(d)For the avoidance of doubt, the Notes Obligations of any Spanish Guarantor shall not extend to any obligations that would constitute unlawful financial assistance within the meaning of Section 143.2 or Section 150 of the Spanish Companies Law.
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01 Collateral.
(a)The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Company set forth in Section 7.07, and the Notes, the Note Guarantees, the Intercreditor Agreements and the Collateral Documents, shall be secured, to the maximum extent permitted by law, as provided in the Collateral Documents, which define the terms of the Liens that secure the Notes and the Note Guarantees, subject to the terms of the Intercreditor Agreements. The Trustee, for the benefit of the Holders, hereby appoints GLAS Americas LLC as the initial Notes Collateral Agent and the Notes Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreements. The Company and the Guarantors hereby agree that the Notes Collateral Agent shall hold the Collateral in trust (or, as the case may be, as direct representative) for the benefit of all of the Holders, the Trustee and the Notes Collateral Agent, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements.
(b)Each Holder, by its acceptance of any Notes and the Note Guarantees, consents and agrees to the terms of the Collateral Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure and release of Collateral and the automatic amendments, supplements, consents, waivers and other modifications thereto without the consent of the Holders) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements on the Issue Date, and any Collateral Documents at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith. In the event of conflict between an Intercreditor Agreement, any of the other Collateral Documents and this Indenture, the applicable Intercreditor Agreement shall control. The Company shall deliver to the Notes Collateral Agent copies of all documents required to be filed pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required by Section 11.04(a), to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed.
(c)The Trustee and each Holder, by accepting the Notes and the Note Guarantees, acknowledge that, as more fully set forth in the Collateral Documents and the Intercreditor Agreements, the Collateral as now or hereafter constituted shall be held for the benefit of the Notes Collateral Agent, all the Holders and the Trustee, and that the Liens granted on the Collateral pursuant to the Collateral Documents are subject to and qualified and limited in all respects by the Collateral Documents and the Intercreditor Agreements and actions that may be taken thereunder.
(58)Prior to the discharge of the Superpriority Credit Facility Obligations, to the extent that the Superpriority Credit Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the Superpriority Credit Facility Collateral Agent in respect of any such matters under the Superpriority Credit Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(59)Prior to the discharge of the 2025 Credit Facility Obligations, to the extent that the 2025 Credit Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the 2025 Credit Facility Collateral Agent in respect of any such matters under the 2025 Credit Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(60)Prior to the discharge of the ABL Obligations, to the extent that the ABL Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the ABL Priority Collateral or makes any determination in respect of any matters relating to the ABL Priority Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the ABL Facility Collateral Agent in respect of any such matters under the ABL Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(d)Without limiting the powers of the Notes Collateral Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec, each of the Holders hereby irrevocably appoints and authorizes the Notes Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Notes Collateral Agent, to act as the hypothecary representative of the present and future Holders as contemplated under Article 2692 of the Civil Code of Quebec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec and applicable law. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and
remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Trustee and the Notes Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Holders. Any person who becomes a Holder in accordance with the terms of this Indenture be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Notes Collateral Agent pursuant to the provisions of ARTICLE 7 also constitute the substitution of the Attorney.
(e)By its acceptance of any Notes and the Note Guarantees, each Holder directs the Trustee to enter into the ABL Intercreditor Agreement in its capacity as Existing USD Notes Trustee (as defined in the ABL Intercreditor Agreement) and on behalf of each Holder, and thereby to irrevocably appoint the European Collateral Agent (as defined in the ABL Intercreditor Agreement), on behalf of itself and each Holder, to serve as collateral agent in respect of the Foreign Collateral (as defined in the ABL Intercreditor Agreement (other than Collateral located in or otherwise governed by the laws of France or any province or territory of Canada)) pursuant to the terms of the ABL Intercreditor Agreement.
Section 11.02 Maintenance of Collateral.
The Company and the Note Guarantors shall (a) maintain the Collateral that is material to the conduct of their respective businesses in good working order, condition and repair, except for expiration of intellectual property at the end of its natural term; (b) pay all real estate and other taxes before the same become delinquent (except such as are contested in good faith and by appropriate negotiations or proceedings or as would not result in a material adverse effect); and (c) maintain in full force and effect all material permits and certain insurance coverages.
Section 11.03 Impairment of Collateral.
Subject to the rights of the holders of any senior Liens and Section 11.07, the Company shall not, and shall not permit any of the Subsidiaries to, take or knowingly or negligently omit to take, any action which action or omission would or could reasonably be expected to have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee, the Notes Collateral Agent and the Holders, unless such action or failure to take action is otherwise permitted by this Indenture, the Intercreditor Agreements or the Collateral Documents.
Section 11.04 Further Assurances.
(a)On and after the Issue Date, and subject to the Intercreditor Agreements, the Company shall and shall cause each Guarantor (subject to, in the case of the Domestic Note Parties, the Domestic Collateral and Guarantee Requirements and in the case of the Foreign Note Parties, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles, as applicable), at their sole expense, to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions which may be necessary, including those the Notes Collateral Agent may from time to time reasonably request (it being understood that the Notes Collateral Agent is under no obligation or duty to make such request), to create, better assure, preserve, protect, defend and perfect (or continue the perfection of) the validity and priority of the Liens and the security interests in the United States and the Specified Jurisdictions and the rights and remedies created or intended to be created under the Collateral Documents (including, without limitation, the notarization of the Spanish Collateral Documents, the delivery of notifications to counterparties and the registration in any applicable public registry) for the benefit of the Trustee, the Notes Collateral Agent and the Holders (subject to Permitted Liens); provided that for so long as there are outstanding any 2025 Credit Facility Obligations, no actions
shall be required to be taken with respect to the perfection of the security interests in the Collateral to the extent such actions are not required to be taken with respect to the 2025 Credit Facility. Such security interests and Liens will be created under the Collateral Documents.
(b)On and after the Issue Date, with respect to any property (other than Excluded Property and Foreign Excluded Property) of the Company or any Guarantors as to which the Notes Collateral Agent, for the benefit of the Holders, does not have a perfected Lien, the Company shall and shall cause the applicable Guarantor to promptly (i) execute and deliver to the Notes Collateral Agent such amendments to the Collateral Documents or such other documents as the Notes Collateral Agent deems reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a perfected first priority security interest (subject to Liens permitted under Section 4.10) in such property, including the filing of Uniform Commercial Code and PPSA financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Notes Collateral Agent.
(c)On and after the Issue Date, with respect to any Subsidiary created or acquired by the Company or any Guarantor, within 45 days of such Person becoming a Subsidiary (or such later date as agreed by the Notes Collateral Agent), (i) the Company shall take all actions (if any) to cause such Subsidiary (other than an Excluded Subsidiary) to comply with the Collateral and Guarantee Requirements, (ii) the Company shall, or shall cause the applicable Guarantor to, execute and deliver to the Notes Collateral Agent such amendments to the Collateral Documents as the Notes Collateral Agent deems reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a perfected first priority security interest (subject to Liens permitted under Section 4.10) in the Capital Stock of such new Subsidiary that is owned by the Company or any Guarantor except to the extent such Capital Stock constitutes an Excluded Property or Foreign Excluded Property, and (iii) except to the extent constituting Excluded Property or Foreign Excluded Property, if such Capital Stock is certificated, deliver to the Notes Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Guarantor, as applicable.
(d)Notwithstanding anything to the contrary herein or in any other Note Document, if the Paderborn Property constitutes (or is required to constitute) collateral securing the Superpriority Credit Facility, the Company shall promptly notify the Trustee, the Notes Collateral Agent and Holders of the Notes thereof. In the case of any such notice to Holders, such notice shall seek the direction of Holders of Notes, to be given no later than 30 days after such notice is given, as to whether the Paderborn Property shall be included in the Collateral securing the Notes and it shall describe in reasonable detail the tax consequences to Holders and beneficial owners of the Notes of including the Paderborn Property in the Collateral. If the Required Noteholders determine to include the Paderborn Property in the Collateral securing the Notes, the Paderborn Property shall cease to be Foreign Excluded Property and constitute Collateral, and such real property shall be subject to Section 11.06 as if such real property had been acquired on the date of such notification.
Section 11.05 After-Acquired Property.
Subject to the applicable limitations and exceptions set forth in the Collateral Documents, the Agreed Security Principles and this Indenture (including with respect to the Excluded Property), from and after the Issue Date, if the Company or any Guarantor acquires any After-Acquired Property or if any new Subsidiary becomes a Guarantor, the Company or such Guarantor shall promptly (but so long as the 2025 Credit Facility is outstanding in no circumstances sooner than required with respect to the 2025 Credit Facility) (i) grant a first-priority perfected security interest (subject to Permitted Liens and the
terms of the Intercreditor Agreements) upon any such property, as security for the Notes and the Note Guarantees and (ii) execute and deliver such mortgages, deeds of trust, security instruments, financing statements and certificates as shall be necessary to vest in the Notes Collateral Agent a perfected security interest, subject only to Permitted Liens, in such After-Acquired Property or in the Collateral of such Guarantor and to have such After-Acquired Property or such Collateral (but subject to the applicable limitations and exceptions set forth in the Collateral Documents, the Agreed Security Principles and this Indenture) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property or Collateral to the same extent and with the same force and effect; provided, however, that if granting such security interest in such After-Acquired Property or Collateral requires the consent of a third party, to the extent such actions are also taken with respect to the 2025 Credit Facility, the Company or such Guarantor will use commercially reasonable efforts to obtain such consent with respect to the security interest for the benefit of the Trustee and the Notes Collateral Agent on behalf of the Holders of the Notes; provided further, however, that if such third party does not consent to the granting of such security interest after the use of such commercially reasonable efforts, the Company or such Guarantor, as the case may be, will not be required to provide such security interest.
Section 11.06 Real Estate Mortgages and Filings.
(a)With respect to any Material Real Property owned by the Company or a Guarantor in the United States on the Issue Date or acquired by the Company or a Guarantor in the United States after the Issue Date that forms a part of the Collateral (individually and collectively, the “Premises”), within 90 days of the Issue Date or the date of acquisition (or such longer period as may be permitted under the Superpriority Credit Facility), as applicable:
(61)The Company or such Guarantor shall deliver to the Notes Collateral Agent, as mortgagee or beneficiary, as applicable, for the ratable benefit of itself and the Holders, counterparts of each Mortgage with respect to each such Premises, in accordance with the requirements of this Indenture and/or the Collateral Documents, duly executed by the Company or such Guarantor, suitable for recording in all recording offices that the Notes Collateral Agent may reasonably deem necessary to create a valid and enforceable mortgage lien (and to perfect such lien) at the time of recordation thereof, with the priority required by this Indenture, the Collateral Documents and the Intercreditor Agreements;
(62)The Notes Collateral Agent shall have received a mortgagee’s title insurance policy insuring (or committing to insure) in favor of the Notes Collateral Agent, and its successors and/or assigns, in the form necessary, with respect to the property purported to be covered by the applicable Mortgage, to insure that the interest created by such Mortgage constitutes valid mortgage liens on the applicable Premises, with the priority required by this Indenture, the Collateral Documents and the Intercreditor Agreements, free and clear of all Liens, defects and encumbrances, other than Permitted Liens. Any such title policy shall be in amounts equal to the estimated Fair Market Value of the Premises covered thereby, and such policies shall also include, to the extent available, all such customary endorsements and reinsurance as are available in the applicable jurisdiction and as the Notes Collateral Agent may reasonably request which are available at commercially reasonable rates in the jurisdiction where the applicable Premises is located; and
(63)The Company or the Guarantors shall deliver to the Notes Collateral Agent with respect to such Premises, surveys of each Premises, local counsel opinions, along with such other documents, instruments, certificates and agreements, and any other documents
necessary to comply with Section 11.06(a) and (b) and as the Trustee or Notes Collateral Agent may reasonably request.
(b)With respect to any fee interest in any Premises owned by the Company or a Guarantor outside the United States on the Issue Date or acquired by the Company or a Guarantor outside the United States after the Issue Date that forms a part of the Collateral, the Company or such Guarantor will be required to take such steps to grant a perfected security interest therein and provide such deliverables as are customary under applicable local law, in each case, to the extent and within the time periods set forth in the Agreed Security Principles or the Canadian Collateral and Guarantee Requirement, as applicable.
Section 11.07 Release of Liens on the Collateral.
(a)Collateral may be released from the Lien and security interest created by the Collateral Documents at any time and from time to time in accordance with the provisions of the Collateral Documents, the Intercreditor Agreements and this Indenture. Notwithstanding anything to the contrary in the Collateral Documents, the Intercreditor Agreements and this Indenture, the Company and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes and the Obligations under this Indenture under any one or more of the following circumstances:
(64)to enable the Company and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Company or a Subsidiary of the Company) to the extent permitted by Section 4.16;
(65)in the case of a Guarantor that is released from its Guarantee with respect to the Notes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(66)with respect to any Collateral that is or becomes an “Excluded Property,” upon it becoming an Excluded Property;
(67)in connection with any enforcement action taken by an Authorized Representative in accordance with the terms of the Intercreditor Agreements or the Collateral Documents; or
(68)as described under Article 9 hereof.
(b)The Liens on the Collateral will be released with respect to the Notes and the Note Guarantees, as applicable:
(69)in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(70)in whole, upon satisfaction and discharge of this Indenture in accordance with ARTICLE 12;
(71)in whole, upon a Legal Defeasance or Covenant Defeasance as set forth under ARTICLE 8;
(72)in whole or in part, in accordance with the applicable provisions of the Collateral Documents, the Intercreditor Agreements and this Indenture; and
(73)automatically upon release of the Guarantees provided by the German-domiciled Guarantors and the Liens on assets of such entities pursuant to Section 11.07(c);
provided that, in the case of any release in whole pursuant to clauses (1), (2), (3) and (4) of this Section 11.07(b), all amounts owing to the Trustee and the Notes Collateral Agent under this Indenture, the Notes, the Note Guarantee, the Collateral Documents and the Intercreditor Agreements have been paid.
(c)Solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities, in each case with respect to the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the New 2L Notes, may be released with the consent of (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Facility, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the 2025 Credit Facility, and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes, solely in the event that such lenders and holders determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors. Upon and simultaneously with such release, the priority of Liens on the pledged equity of Diebold Germany shall automatically be changed such that the Lien in favor of the Superpriority Credit Facility is senior to the Lien in favor of the 2025 Credit Facility, the 2025 Notes and (for the avoidance of doubt) the New 2L Notes (it being understood that the Lien on the pledged equity of Diebold Germany securing the New 2L Notes shall at all times be junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes); provided that, no such release will be effective until the applicable proceeding is actually commenced.
(d)The Company and each Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to this Indenture (other than pursuant to Section 11.07(a) or Section 11.07(b)(4) or (5)) or pursuant to the Collateral Documents:
(74)an Officer’s Certificate requesting any such release, filing or other action without recourse, warranty or representation of any kind (express or implied);
(75)an Officer’s Certificate and Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable to such release have been complied with and that it is permitted for the Trustee and/or the Notes Collateral Agent to execute and deliver the documents requested by the Company in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Company; and
(76)a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee).
(e)Upon compliance by the Company and each Guarantor, as the case may be, with the conditions precedent for any release of Collateral as set forth above, and if required by this Indenture upon delivery by the Company or the Guarantors to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Notes Collateral Agent shall, at the
Company’s expense, promptly cause to be released and reconveyed to the Company or the relevant Guarantors, as the case may be, the released Collateral, and take, at the Company’s expense, all other actions reasonably requested by the Company in connection therewith. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled to conclusively rely.
Section 11.08 Information Regarding Collateral.
(a)The Company will furnish to the Notes Collateral Agent, with respect to the Company or any Guarantor, promptly (and in any event within 10 days of such change or such longer period as then permitted under the facility (for the purposes of this paragraph, the “controlling facility”) governing that series of Indebtedness for which the Controlling Collateral Agent (as defined under the applicable Intercreditor Agreement) for any applicable Intercreditor Agreement acts as “collateral agent”) written notice of any change in such Person’s (1) corporate or organization name, (2) jurisdiction of organization or formation or the location of its registered office, principal place of business or chief executive office, (3) identity or corporate structure or (4) organizational identification number. The Company and the Guarantors will agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made, or will have been made within 10 days following such change (or such longer period as then permitted under the controlling facility) or within any applicable statutory period, under the Uniform Commercial Code, the PPSA and any other applicable laws that are required in the Collateral Documents in order for the Collateral to be made subject to the Lien of the Notes Collateral Agent under the Collateral Documents in the manner and to the extent required by this Indenture or any of the Collateral Documents and shall take all necessary action so that such Lien is perfected with the same priority as immediately prior to such change to the extent required by the Collateral Documents. The Company also agrees promptly to notify the Notes Collateral Agent in writing if any material portion of the Collateral is damaged, destroyed or condemned in a manner which would reasonably be expected to have a material adverse effect.
Section 11.09 Collateral Documents and Intercreditor Agreements.
(a)Each Holder, by its acceptance of a Note, (a) agrees that it will be bound by the provisions of any Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Intercreditor Agreement and (b) authorizes and instructs the Trustee and the Notes Collateral Agent to enter into (i) the ABL Intercreditor Agreement on the Issue Date, (ii) the First Lien Pari Passu Intercreditor Agreement on the Issue Date, (iii) the Junior Lien Pari Passu Intercreditor Agreement on the Issue Date, (iv) the Non-Released Multi Lien Intercreditor Agreement on the Issue Date and (v) the Multi Lien Intercreditor Agreement on the Issue Date in accordance with this Indenture and the other Note Documents, in each case as Trustee and as Notes Collateral Agent, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein. The foregoing provisions as they relate to the Intercreditor Agreements are intended as an inducement to the lenders under the Superpriority Credit Facility, the 2025 Credit Facility and the ABL Facility to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the applicable Intercreditor Agreements.
(b)Notwithstanding anything herein to the contrary, (i) the Liens and security interests granted to the Notes Collateral Agent on the Shared Collateral (as defined in the Multi Lien Intercreditor Agreement) are expressly subject and subordinate to the Liens and security interests granted
in favor of the First Priority Secured Parties (as defined in the Multi Lien Intercreditor Agreement), and
(ii) the exercise of any right or remedy by the Notes Collateral Agent or any other party hereunder in respect of such Shared Collateral is subject to the limitations and provisions of the Multi Lien Intercreditor Agreement. In the event of any conflict between the terms of the Multi Lien Intercreditor Agreement and the terms of this Indenture, the terms of the Multi Lien Intercreditor Agreement shall govern.
Section 11.10 Suits to Protect the Collateral.
Subject to the provisions of Article 7, the Collateral Documents and the Intercreditor Agreements, the Trustee may direct the Notes Collateral Agent to take all actions it determines in order to:
(a)
enforce any of the terms of the Collateral Documents; and hereunder.
(b)collect and receive any and all amounts payable in respect of the Obligations
Subject to the provisions of the Collateral Documents and the Intercreditor Agreements,
the Trustee and the Notes Collateral Agent shall have the power to institute and to maintain such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to prevent any impairment of the Collateral by an acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this Section
11.10 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
Section 11.11 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 11.12 Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 11 to be sold be under any obligation to ascertain or inquire into the authority of the Company or the applicable Guarantor to make any such sale or other transfer.
Section 11.13 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 11 upon the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 11; and if the Trustee or the Notes Collateral Agent shall be in the possession of the Collateral
under any provision of this Indenture, then such powers may be exercised by the Trustee or the Notes Collateral Agent.
Section 11.14 Spanish Particularities in Relation to any Spanish Collateral Documents.
(a)By their acceptance of the Notes, each of the Holders hereby:
(77)Appoints each of the Notes Collateral Agent and/or the Trustee, as applicable, to be its mandatario (empowered representative) for the purpose of executing any Spanish Collateral Document in the name and on behalf of the Holders, with the power to determine and agree any term and condition of such Spanish Collateral Document, execute any other agreement or instrument, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, enforcement and release of the security created there under in the name and on behalf of the Holders; and
(78)undertakes to ratify and approve any such action taken in the name and on behalf of the Holders by the Notes Collateral Agent and/or the Trustee acting in such capacity.
(b)For the above purposes, each of the Holders shall, if so requested by the Notes Collateral Agent and/or the Trustee, as applicable:
(79)grant a power of attorney in favor of the Notes Collateral Agent and/or the Trustee entitling each of them to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Collateral Document; and
(80)notarize and apostille this power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain).
(c)Each of the Holders hereby authorizes the Notes Collateral Agent and/or the Trustee, as applicable (whether or not by or through employees or agents):
(81)to exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Notes Collateral Agent and/or the Trustee by the Spanish Collateral Documents together with such powers and discretions as are reasonably incidental thereto; and
(82)to take such action on its behalf as may from time to time be authorized under or in accordance with the Spanish Collateral Documents.
(d)To the extent any Holder is unable to grant such powers referred to above or in any other provision of this Indenture to the Notes Collateral Agent and/or the Trustee, each such Holder irrevocably undertakes before the Notes Collateral Agent, the Trustee and the other Holders to appear, carry out any action and execute any document needed or convenient with the Notes Collateral Agent and/or the Trustee to enable the Notes Collateral Agent and/or the Trustee to exercise any right, power, authority or discretion vested in it as Notes Collateral Agent and/or the Trustee, as applicable, pursuant to this Indenture and to execute any document or instrument including any Spanish Public Document.
ARTICLE 12 SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
(a)This Indenture will be discharged, and will cease to be of further effect as to all Notes and Note Guarantees issued hereunder, when either:
(83)all Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust or segregated and held in trust by the Company) have been delivered to the Trustee for cancellation; or
(84)(A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise, will become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company or any Guarantor has irrevocably deposited or caused to be deposited with the Paying Agent, as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption, as the case may be;
(B)no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(C)the Company or any Guarantor has paid or caused to be paid all sums payable by the Company under this Indenture; and
(D)the Company has delivered irrevocable instructions to the Trustee and the Paying Agent to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
(b)In addition, the Company shall deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent to satisfaction and discharge have been satisfied. Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to Section 12.01(a)(2)(A), the provisions of Section 12.02 and Section 8.06 shall survive.
Section 12.02 Application of Trust Money.
(a)Subject to the provisions of the Intercreditor Agreements and Section 8.06, all money deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine,
to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other funds except to the extent required by law.
(b)If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 12.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s and any Guarantor’s obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01; provided that if the Company has made any payment of principal, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent, as the case may be.
ARTICLE 13
MISCELLANEOUS
Section 13.01 [Reserved].
Section 13.02 Notices.
(a)Any notice or communication to the Company, any Guarantor, the Trustee or the Notes Collateral Agent is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail (certified or registered, return receipt requested), postage prepaid, or overnight air courier guaranteeing next day delivery or (3) sent by electronic transmission, to its address set forth below:
if to the Company or any Guarantor:
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
North Canton, Ohio 44720-1507 Fax No.: (330) 490-6823
Email: james.barna@dieboldnixdorf.com Attention: James Barna
with a copy to:
Sullivan & Cromwell LLP 125 Broad Street
New York, NY 10004 Fax No: (212) 291-9219
Email: blauta@sullcrom.com Attention: Ari Blaut
if to the Trustee:
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Email: david.schlabach@usbank.com Attention: David A. Schlabach
if to the Notes Collateral Agent:
GLAS Americas LLC
3 Second Street, Suite 206 Jersey City, NJ 07311
Email: TMGUS@glas.agency; clientservices.americas@glas.agency Telephone: +1 (201) 839-2181
Attention: Transaction Management
The Company, any Guarantor, the Trustee or the Notes Collateral Agent, by like notice, may designate additional or different addresses for subsequent notices or communications.
(b)All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; on the first date of which publication is made, if by publication; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; the next Business Day after timely delivery to the courier, if mailed by overnight air courier guaranteeing next day delivery; when receipt acknowledged, if sent by electronic transmission; provided that any notice or communication delivered to the Trustee or the Notes Collateral Agent shall be deemed effective upon actual receipt thereof.
(c)Any notice or communication to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to its address shown on the Note Register or by such other delivery system as the Trustee agrees to accept. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
(d)Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee and the Notes Collateral Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(e)Where this Indenture provides for notice of any event to a Holder of a Global Note, such notice shall be sufficiently given if given to the Depositary for such Note (or its designee), according to the Applicable Procedures, if any, prescribed for the giving of such notice.
(f)The Trustee and the Notes Collateral Agent agree to accept and act upon notice, instructions or directions pursuant to this Indenture sent by electronic transmission; provided, however, that (1) the party providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee and the Notes Collateral Agent in a timely manner, and (2) such originally executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions. The Trustee and the Notes Collateral Agent shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Notes Collateral Agent’s reasonable reliance upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or directions.
(g)If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
(h)If the Company mails a notice or communication to Holders, it shall mail a copy to the Trustee, the Notes Collateral Agent and each Agent at the same time.
Section 13.03 [Reserved].
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or any Guarantor to the Trustee or the Notes Collateral Agent to take any action under this Indenture, the Company or such Guarantor, as the case may be, shall furnish to the Trustee or the Notes Collateral Agent:
(a)an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as the case may be (which shall include the statements set forth in Section 13.05), stating that, in the opinion of the signer(s), all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and (b)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as the case may be (which shall include the statements set forth in Section 13.05), stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with; provided that subject to Section 5.01(c), no Opinion of Counsel shall be required in connection with the addition of a Guarantor under this Indenture upon execution and delivery by such Guarantor, the Trustee and the Notes Collateral Agent of a supplemental indenture to this Indenture, the form of which is attached as Exhibit C.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.07) shall include: (a)a statement that the Person making such certificate or opinion has read such covenant or condition;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees, Members, Partners and Shareholders.
No past, present or future director, officer, employee, incorporator, member, partner or shareholder of the Company or any Guarantor, as such, shall have any liability for any obligations of the Company or any Guarantor (other than the Company in respect of the Notes and each Guarantor in
respect of its Note Guarantee) under the Notes, the Note Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.08 Governing Law.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.09 Consent to Jurisdiction and Service of Process; Waiver of Jury Trial.
EACH PARTY HEREBY IRREVOCABLY SUBMITS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.10 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12 Successors.
All agreements of the Company in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Notes Collateral Agent in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06.
Section 13.13 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 13.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.16 PDF Delivery of Signature Pages.
The exchange of copies of this Indenture and of signature pages by portable document format (“PDF”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.17 U.S.A. PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 13.18 Payments Due on Non-Business Days.
In any case where any Interest Payment Date, redemption date or repurchase date or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest on the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, redemption date or repurchase date, or at the Stated Maturity of the Notes, provided that no interest will accrue for the period from and after such Interest Payment Date, redemption date, repurchase date or Stated Maturity, as the case may be.
Section 13.19 Spanish Provisions Relating to Executive Proceedings
(a)Spanish Public Documents
At the reasonable request of the Trustee or the Notes Collateral Agent, this Indenture, the Notes, each Spanish Collateral Document, and any other document relating to any of the above (as well as any supplemental indentures, amendments hereto or thereto and any accession deeds or joinder agreements) shall be formalized as a Spanish Public Document. At the reasonable request of the Trustee or the Notes Collateral Agent, each Spanish Guarantor also undertakes to grant any public or private document required for the purposes of or in relation to such Spanish Public Document. Any costs and expenses relating to such formalization shall be paid and satisfied by the relevant Spanish Guarantor in accordance with this Indenture. The costs of issuance of the first copies (with and without enforcement title) of such Spanish Public Document shall be borne by the relevant Spanish Guarantors and the cost regarding the issuance of additional copies will be borne by the Party requesting such additional copies. Each Spanish Guarantors undertakes that the Spanish Public Document shall state any conditions that any of the Trustee or the Notes Collateral Agent reasonably considers necessary or convenient in respect of the enforceability of this Indenture, the Notes, or the Spanish Collateral Documents referred to in article 517 et seq of the Spanish Civil Procedural Law.
(b)Enforcement proceedings
(85)For the purpose of art. 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that: (A) the amount due and payable under this Indenture that may be claimed in any executive proceedings will be contained in a certificate setting out the relevant calculations and determinations provided by the Trustee, the Notes Collateral Agent and/or the Holders and will be based on the accounts maintained by such the Trustee and/or the Notes Collateral Agent (as applicable) in connection with this Indenture (or any Supplemental Indenture or amendment thereto); (B) the Trustee, the Notes Collateral Agent and/or the Holders may (at the cost of the relevant Spanish Guarantor) have the certificate notarized evidencing that the calculations and determinations have been effected; and (C) the Trustee, the Notes Collateral Agent and/or the Holders may claim the total amount of the principal and interest due if there is a default in the repayment of any instalment of principal or interest.
(86)The Trustee or the Notes Collateral Agent may start, where applicable, executive proceedings (procedimiento ejecutivo) in Spain, in connection with or relating to this Indenture (or any Supplemental Indenture or amendment thereto) or the relevant Supplemental Indenture or amendment thereto, by providing to the relevant court the documents specified in article 573 of the Spanish Civil Procedural Law, namely: (A) an original notarial copy of this Indenture or the relevant Supplemental Indenture or amendment thereto; (B) a notarial document (acta notarial) incorporating the certificate of the Trustee or the Notes Collateral Agent referred to in paragraph (i) above for the purposes of Article 572 of the Spanish Civil Procedural Law; and (B) evidence that the relevant Spanish Guarantor has been notified of the amount which is due and payable resulting from the certificate (e.g., by means of a notarial document (acta notarial)).
(87)The Spanish Guarantors hereby expressly authorize the Notes Collateral Agent and the Trustee (and each Holder, as appropriate) to request and obtain certificates and documents issued by the notary who has formalized this Indenture (or any Supplemental Indenture or amendment thereto) in order to evidence its compliance with the entries of his registry-book and the relevant entry date for the purpose of numbers 4º or 5º (as applicable) of Article 517 of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the Spanish Guarantor in the manner provided under this Indenture.
(88)For the purposes of article 540.2 of the Spanish Civil Procedural Law, the Spanish Guarantors acknowledge and accept that, provided that the relevant assignment, transfer or change of Holders has been made in accordance with the terms of this Indenture, any assignment,
transfer or change of Holders shall be duly and sufficiently evidenced to any Spanish court by means of a certificate issued by the Notes Collateral Agent or the Trustee confirming who the Holders are in each moment, and therefore, those who are certified as Holders by the Notes Collateral Agent or the Trustee shall be able to initiate enforcement in Spain through procedimiento ejecutivo without further evidence being required.
(89)The default interest agreed under this Indenture shall also be the post- judgment interest rate for purposes of the provisions of article 576.1 of the Spanish Civil Procedural Law.
(90)Notwithstanding the provisions of Section 13.08 (Governing Law) above, none of the Holders will be prevented from initiating enforcement proceedings before the Spanish courts against the Spanish Guarantors, which is hereby expressly acknowledged and accepted by the Spanish Guarantors.
Section 13.20 Parallel Debt; Parallel Debt Owed to the Notes Collateral Agent.
This Section 13.20 is included in this Indenture solely for the purpose of ensuring the validity and effect of certain security rights governed by the laws of the Netherlands, Poland and Germany granted or to be granted pursuant to the applicable Collateral Documents and, for the avoidance of doubt, shall not limit the rights and remedies provided to the Trustee or the Notes Collateral Agent by the other provisions hereof and the provisions of the other Note Documents.
(a)Each of the Note Parties hereby irrevocably and unconditionally undertakes to pay to the Notes Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties amounts equal to any amounts owing from time to time by that Note Party to any Secured Party under any Note Document as and when those amounts are due for payment under the relevant Note Document (each such payment undertaking of a Note Party in relation to any individual Secured Party, a “Parallel Debt Undertaking”, and all Parallel Debt Undertakings of each Note Party taken together, its “Parallel Debt”).
(b)Each of the Note Parties and the Notes Collateral Agent acknowledge that the obligations of each Note Party under any Parallel Debt Undertaking are several and are separate and independent from, and shall not in any way limit or affect, the obligations of that Note Party to that relevant Secured Party under any Note Document that corresponds to the relevant Parallel Debt Undertaking (its “Corresponding Debt”) nor shall the amounts for which each Note Party is liable under any Parallel Debt Undertaking be limited or affected in any way by its Corresponding Debt provided that:
(91)the Notes Collateral Agent shall not demand payment with regard to the Parallel Debt Undertaking of a Note Party to the extent that the relevant Holder’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
(92)a Secured Party shall not demand payment with regard to the Corresponding Debt of a Note Party to the extent that such Note Party’s Parallel Debt Undertaking has been irrevocably paid or (in the case of guarantee obligations) discharged.
(93)each Parallel Debt Undertaking shall cover, in an anticipatory manner as to its scope, any future changes in the relevant Corresponding Debt, in particular any such changes resulting from any future increase of any loan or note facility, any future extension of the agreed maturity thereof or any future change of the interest rate charged thereunder;
(94)each Parallel Debt Undertaking shall be due and payable at any time from the date of this Indenture in an amount which equals the amount and currency or currencies of the relevant Corresponding Debt that is due and payable at the same time as the relevant Corresponding Debt; and
(95)each Parallel Debt Undertaking shall remain effective notwithstanding any transfer or assumption of its Corresponding Debt in whole or in part to or by any third party, irrespective of whether any such transfer or assumption is effected by way of assignment or assignment and transfer by way of assumption of contract or otherwise.
(c)The Notes Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral under the Collateral Documents granted under the Note Documents to the Notes Collateral Agent to secure the Parallel Debt Undertakings is granted to the Notes Collateral Agent in its capacity as creditor of each Parallel Debt Undertaking and shall not be held on trust.
(d)All monies received or recovered by the Notes Collateral Agent pursuant to this Section 13.20, and all amounts received or recovered by the Notes Collateral Agent from or by the enforcement of any collateral under the Collateral Documents granted to secure any Parallel Debt Undertaking, shall be applied in accordance with this Indenture.
(e)Without limiting or affecting the Notes Collateral Agent’s rights against the Note Parties (whether under this Section 13.20 or under any other provision of the Note Documents), each Holder acknowledges that:
(96)nothing in this Section 13.20 shall impose any obligation on the Notes Collateral Agent to advance any sum to any Holder or otherwise under any Note Document, except in its capacity as lender;
(97)for the purpose of any vote taken under any Note Document, the Notes Collateral Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity as a lender; and
(98)for purposes of any Dutch Collateral Document, any resignation by the Notes Collateral Agent is not effective with respect to its rights under the Parallel Debt until all rights and obligations under the Parallel Debt have been assigned to and assumed by the successor agent appointed in accordance with this Indenture.
(f)The Notes Collateral Agent will reasonably cooperate in transferring its rights and obligations under the Parallel Debt to a successor agent in accordance with this Indenture and will reasonably cooperate in transferring all rights and obligations under any Collateral Document to such successor agent. All parties to this Indenture hereby, in advance, irrevocably grant their cooperation (medewerking) to such transfers of rights and obligations by the Notes Collateral Agent to a successor agent in accordance with this Indenture.
(g)The provisions of this Section 13.20 may not apply for any Collateral Documents governed by French law.
Section 13.21 Judgment Currency.
(a)If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent
that they may effectively do so, under applicable law that the rate of exchange used shall be that at which in accordance with normal banking procedures the Trustee could purchase the first currency with such other currency in the city in which it normally conducts its foreign exchange operation for the first currency on the Business Day preceding the day on which final judgment is given.
(b)The obligation of the Note Parties in respect of any sum due from them to the Trustee or any Holder hereunder shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Indenture (the “Indenture Currency”), be discharged only to the extent that on the Business Day following receipt by the Trustee of any sum adjudged to be so due in the Indenture Currency the Trustee may in accordance with normal banking procedures purchase the Indenture Currency with the Judgment Currency; if the amount of Indenture Currency so purchased is less than the sum originally due to the Trustee in the Agreement Currency, the Note Parties agree notwithstanding any such judgment to indemnify the Trustee against such loss, and if the amount of the Indenture Currency so purchased exceeds the sum originally due to the Trustee, the Trustee agrees to remit to the Note Parties such excess.
[Signatures on following page]
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
Name: Jeffrey Rutherford |
Title: Executive Vice President and Chief Financial Officer |
| | |
DIEBOLD GLOBAL FINANCE CORPORATION |
By: |
Name: James Barna |
Title: Vice President and Treasurer |
| | |
DIEBOLD HOLDING COMPANY, LLC |
By: |
Name: James Barna |
Title: Vice President and Treasurer |
| | |
DIEBOLD SST HOLDING COMPANY, LLC |
By: |
Name: James Barna |
Title: Vice President and Treasurer |
| | |
GRIFFIN TECHNOLOGY INCORPORATED |
By: |
Name: Elizabeth Radigan |
Title: Vice President and Secretary |
| | |
DIEBOLD SELF-SERVICE SYSTEMS |
By: |
Name: James Barna |
Title: Vice President and Treasurer |
| | |
DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
By: |
Name: James Barna |
Title: Vice President and Treasurer |
| | |
DIEBOLD NIXDORF CANADA, LIMITED |
By: |
Name: Jonathan Leiken |
Title: Vice President and Secretary |
| | |
DIEBOLD CANADA HOLDING COMPANY INC. |
By: |
Name: Jonathan Leiken |
Title: Vice President and Secretary |
| | |
DIEBOLD NIXDORF BV |
By: |
Name: Helena Mueller |
Title: Managing Director |
| | |
DIEBOLD NIXDORF GLOBAL HOLDING B.V. |
By: |
Name: Elizabeth Radigan |
Title: Authorized Signatory |
| | |
DIEBOLD NIXDORF B.V. |
By: |
Name: Elizabeth Radigan |
Title: Authorized Signatory |
| | |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
Name: Elizabeth Radigan |
Title: Authorized Signatory |
| | |
DIEBOLD NIXDORF SOFTWARE PARTNER B.V. |
By: |
Name: Michael Engel |
Title: Managing Director |
| | |
DIEBOLD NIXDORF SOFTWARE C.V. |
By Diebold Nixdorf Software Partner B.V. as General Partner |
By: |
Name: Michael Engel |
Title: Managing Director |
| | |
DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. |
By: |
Name: Hendrik Schouten |
Title: Managing Director |
| | |
DIEBOLD NIXDORF S.A.S. |
By: |
Name: Octavio Marquez |
Title: President |
| | |
DIEBOLD NIXDORF HOLDING GERMANY GMBH |
By: |
Name: Olaf Heyden |
Title: Managing Director |
| | |
WINCOR NIXDORF INTERNATIONAL GMBH |
By: |
Name: Olaf Heyden |
Title: Managing Director |
| | |
DIEBOLD NIXDORF SYSTEMS GMBH |
By: |
Name: Jörn Förster |
Title: Managing Director |
| | |
DIEBOLD NIXDORF DEUTSCHLAND GMBH |
By: |
Name: Roland Sorke |
Title: Managing Director |
| | |
DIEBOLD NIXDORF LOGISTICS GMBH |
By: |
Name: Christina Wieber |
Title: Managing Director |
| | |
DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH |
By: |
Name: Christina Wieber |
Title: Managing Director |
| | |
WINCOR NIXDORF FACILITY GMBH |
By: |
Name: Jörn Förster |
Title: Managing Director |
| | |
DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG |
By Diebold Nixdorf Security GmbH as General Partner |
By: |
Name: Jörn Förster |
Title: Managing Director |
| | |
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH |
By: |
Name: Jörg Kleinschmidt |
Title: Managing Director |
| | |
IP MANAGEMENT GMBH |
By: |
Name: Olaf Heyden |
Title: Managing Director |
| | |
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH |
By: |
Name: Olaf Heyden |
Title: Managing Director |
| | |
DIEBOLD NIXDORF SECURITY GMBH |
By: |
Name: Jörn Förster |
Title: Managing Director |
| | |
DIEBOLD NIXDORF OPERATIONS GMBH |
By: |
Name: Michael Schütt |
Title: Managing Director |
| | |
DIEBOLD NIXDORF FINANCE GERMANY GMBH |
By: |
Name: Jörn Förster |
Title: Managing Director |
| | |
DIEBOLD NIXDORF S.R.L. |
By: |
Name: Jonathan Leiken |
Title: Attorney Place: United States of America |
By: Name: Lorenza Sbarbaro
Title: Director
By: Name: Filippo Visconti
Title: Director
By: Name: Ciro Mancino
Title: Director
| | |
DIEBOLD NIXDORF SP. Z O.O. |
By: |
Name: Adrian Gawryś |
Title: Member of the Management Board |
DIEBOLD NIXDORF BPO SP. Z O.O.
By: Name: Adrian Gawryś
Title: Member of the Management Board
| | |
DIEBOLD NIXDORF S.L. |
By: |
Name: D. Luis Carlos Rodríguez Argüelles |
Title: Managing Director |
| | |
DIEBOLD NIXDORF AB |
By: |
Name: Rene Lauxtermann |
Title: Director |
| | |
DIEBOLD NIXDORF (UK) LIMITED |
By: |
Name: Paul George Young |
Title: Director |
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, |
as Trustee |
By: |
Name: David A. Schlabach |
Title: Vice President |
| | |
GLAS AMERICAS LLC, |
as Notes Collateral Agent |
By: |
| Name: |
| Title: |
APPENDIX A
PROVISIONS RELATING TO NOTES
Section 1.1 Definitions.
(a)Capitalized Terms.
Capitalized terms used but not defined in this Appendix A have the meanings given to them in this Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.
“Clearstream” means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.
“Distribution Compliance Period,” means, with respect to any Note, the period of 40 consecutive days beginning on and including the later of (a) the day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Company to the Trustee, and (b) the date of issuance with respect to such Note or any predecessor of such Note.
“Euroclear” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.
“IAI” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Regulation S” means Regulation S promulgated under the Securities Act. “Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act. “United States” means the United States of America.
“Unrestricted Global Note” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.
“U.S. person” means a “U.S. person” as defined in Regulation S.
(b)Other Definitions.
| | | | | |
Term: | Defined in Section: |
“Agent Members” ........................................................................................ | 2.1(c) |
“Definitive Notes Legend”........................................................................... | 2.2(e) |
“ERISA Legend” ......................................................................................... | 2.2(e) |
“Global Note” ............................................................................................ | 2.1(b) |
“Global Notes Legend” ............................................................................... | 2.2(e) |
“IAI Global Note” ....................................................................................... | 2.1(b) |
“OID Legend” .................................................................................... | 2.2(e) |
“Regulation S Global Note” ........................................................................ | 2.1(b) |
“Regulation S Notes”................................................................................... | 2.1(a) |
“Restricted Notes Legend” .......................................................................... | 2.3(e) |
“Rule 144A Global Note”............................................................................ | 2.1(b) |
“Rule 144A Notes” ..................................................................................... | 2.1(a) |
Section 2.1 Form and Dating
(a)(x) The Notes issued on July 25, 2020 were (i) offered and sold by the Company to the initial purchasers thereof and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A (“Rule 144A Notes”) and (2) Persons other than U.S. persons in reliance on Regulation S (“Regulation S Notes”). Additional Notes may also be considered to be Rule 144A Notes or Regulation S Notes, as applicable
(y) The Notes issued on December 29, 2022 shall be offered and sold by the Company in reliance on Section 4(a)(2) of the Securities Act and resold initially only to (1) QIBs in reliance on Rule 144A (and will constitute “Rule 144A Notes”), (2) IAIs that are not QIBs and that are purchasing for their own account or for the account of another IAI (and will constitute “IAI Notes”) and (3) Persons other than U.S. persons in reliance on Regulation S (and will constitute “Regulation S Notes”). Additional Notes may also be considered to be Rule 144A Notes, IAI Notes or Regulation S Notes, as applicable.
(b)Global Notes. Rule 144A Notes shall be issued initially in the form of one or more permanent global Notes in definitive, fully registered form, numbered RA-1 upward (collectively, the “Rule 144A Global Note”) and Regulation S Notes shall be issued initially in the form of one or more global Notes, numbered RS-1 upward (collectively, the “Regulation S Global Note”), in each case without interest coupons and bearing the Global Notes Legend and Restricted Notes Legend, which shall be deposited with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in the Indenture. One or more global Notes in definitive, fully registered form without interest coupons and bearing the Global Notes Legend and the Restricted Notes Legend, numbered RIAI-1 upward (collectively, the “IAI Global Note”) shall also be issued on the Issue Date, deposited with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Trustee as provided in this Indenture to accommodate transfers of beneficial interests in the Notes to IAIs subsequent to the initial distribution. The Rule 144A Global Note, the IAI Global Note, the Regulation S Global Note and any Unrestricted Global Note are each referred to herein as a “Global Note” and are collectively referred to herein as “Global Notes.” Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note”
attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 of this Indenture and Section 2.2(c) of this Appendix A.
(c)Book-Entry Provisions. This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this Section 2.1(c) and Section 2.02 of this Indenture and pursuant to an order of the Company signed by one Officer of the Company, authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such Depositary and
(ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as Custodian.
Members of, or participants in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(d)Definitive Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer and Exchange.
(a)Transfer and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Registrar with a request:
(i)to register the transfer of such Definitive Notes; or
(ii)to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:
(3)shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(4)in the case of Transfer Restricted Notes, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to
Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend, and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.
(b)Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Registrar, together with:
(i)a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto; and
(ii)written instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding the Depositary account to be credited with such increase,
the Trustee shall cancel such Definitive Note and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note is not then outstanding, the Company shall issue and the Trustee shall authenticate, upon an Authentication Order, a new applicable Global Note in the appropriate principal amount.
(c)Transfer and Exchange of Global Notes.
(i)The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with the Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary to be credited with a beneficial interest in such Global Note, or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.
(ii)If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.
(iii)Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section 2.3 of this Appendix A), a Global Note may not be transferred except as a whole and not in part if the transfer is by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
(d)Restrictions on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global Notes.
(i)Transfers by an owner of a beneficial interest in a Rule 144A Global Note or an IAI Global Note to a transferee who takes delivery of such interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Note or a
Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed letter substantially in the form of Exhibit B to the Trustee.
(ii)During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation S Global Note and any applicable securities laws of any state of the U.S. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period. Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.
(iii)Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
(iv)Beneficial interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests in an Unrestricted Global Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A) and/or upon delivery of such legal opinions, certifications and other information as the Company or the Trustee may reasonably request.
(v)If no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Company shall issue and the Trustee shall authenticate, upon an Authentication Order, a new Unrestricted Global Note in the appropriate principal amount.
(e)Legends.
(i)Except as permitted by Section 2.2(d), this Section 2.2(e) and Section 2.2(i) of this Appendix A, each Note certificate evidencing the Global Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following
form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Notes Legend”):
For Notes issued on July 25, 2020:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF AT LEAST $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
Each Definitive Note shall bear the following additional legend (“Definitive Notes Legend”):
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note shall bear the following additional legend (“ERISA Legend”):
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT TO WHICH SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), APPLIES, OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR PLAN, ACCOUNT OR ARRANGEMENT, OF A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OF A CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) THAT HAS NOT MADE AN ELECTION UNDER SECTION 410(D) OF THE CODE, OR OF A NON-
U.S. PLAN, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY OTHER APPLICABLE UNITED STATES FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS SIMILAR TO ERISA AND THE CODE.
For Notes issued on December 29, 2022:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
Each Definitive Note shall bear the following additional legend (“Definitive Notes Legend”):
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note shall bear the following additional legend (“ERISA Legend”):
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE OR ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES (A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
Each Exchange Note shall bear the following additional legend (“OID Legend”):
THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES (“OID”). HOLDERS MAY OBTAIN THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY BY SUBMITTING A WRITTEN REQUEST FOR IT TO THE COMPANY AT C/O DIEBOLD NIXDORF, INCORPORATED, 50 EXECUTIVE PARKWAY, PO BOX 2520, HUDSON, OHIO 44236-1605, ATTENTION: CORPORATE SECRETARY.
(ii)Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A) and provides such legal opinions, certifications and other information as the Company or the Trustee may reasonably request.
(iii)After a transfer of any Notes during the period of the effectiveness of a shelf registration statement with respect to such Notes, as the case may be, all requirements pertaining to the Restricted Notes Legend on such Notes shall cease to apply and the requirements that any such Notes be issued in global form shall continue to apply.
(f)Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Registrar (if it is then the Custodian for such Global Note) with respect to such Global Note, by the Registrar or the Custodian, to reflect such reduction.
(g)Obligations with Respect to Transfers and Exchanges of Notes.
(i)To permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate, Definitive Notes and Global Notes at the Registrar’s request.
(ii)No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07 of this Indenture), but the Company may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.15, 4.16 and 9.05 of this Indenture).
(iii)Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(iv)All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(v)In order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the Restricted Notes Legend and has not been registered under the Securities Act, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Registrar to the effect that no registration under the Securities Act is required in respect of such exchange or transfer or the resale of such interest by the beneficial holder thereof, shall be required to be delivered to the Registrar and the Trustee.
(h)No Obligation of the Trustee.
(i)The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(ii)The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.3 Definitive Notes.
(af)A Global Note deposited with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 may be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and the Depositary notifies the Company that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the Company within 90 days of such notice or after the Company becomes aware of such cessation. In addition, any Affiliate of the Company or any Guarantor that is a beneficial owner of all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a written request to the Company and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this Indenture or the Company or Trustee.
(ag)Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of
each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct. Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise provided by Section 2.2(e) of this Appendix A, bear the Restricted Notes Legend.
(ah)The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(ai)In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Company shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
APPENDIX B
AGREED SECURITY PRINCIPLES
1.Agreed Security Principles
(a)Subject to paragraph (b) below, the guarantees and security required to be provided under the Note Documents (i) by any Note Party incorporated in a Foreign Guarantor Jurisdiction (such term as defined below) (a “Foreign Note Party”) or (ii) over the Equity Interests of a Foreign Note Party owned by any Note Party, will in each case, be given in accordance with the security principles set out in this Appendix B (these “Agreed Security Principles”). This Appendix B identifies the Agreed Security Principles and determines the extent and terms of the guarantees and security proposed to be provided (x) by the Foreign Note Parties and (y) in respect of the Equity Interests of Foreign Note Parties owned by any Note Party in relation to the Notes (or any refinancing thereof) and the other Obligations.
(b)To the extent that an interpretation of these Agreed Security Principles or a determination is required to be made hereunder in connection with the delivery of guarantees and security or the terms of the guarantees and security, such determination will be made by the Company and the Notes Collateral Agent and, with respect to any provisions relating to protections or obligations of the Trustee or the Notes Collateral Agent, the Trustee and the Notes Collateral Agent, respectively. For the avoidance of doubt, neither the Notes Collateral Agent nor the Trustee shall have any obligation to ensure that the security and guarantees provided are consistent with these Agreed Security Principles.
2.Guarantees
Subject to the guarantee limitations set out in the Note Documents, and with respect to the Foreign Note Parties, customary limitations in the relevant jurisdiction reasonably agreed by the Company and the Notes Collateral Agent, each guarantee by a Foreign Note Party will be an upstream, cross- stream and downstream guarantee for the Obligations in accordance with, and subject to, the terms of these Agreed Security Principles in each relevant jurisdiction (references to "security" to be read for this purpose as including guarantees).
3.Secured Liabilities
Security documents will secure, subject to local law restrictions, all liabilities of Note Parties under the Note Documents in accordance with, and subject to, the terms of the Agreed Security Principles in each relevant jurisdiction.
4.Overriding Principle
(a)The guarantees and security to be provided in respect of the Note Documents by Foreign Subsidiaries in accordance with these Agreed Security Principles are only to be given by Foreign Subsidiaries which are incorporated in Germany, Belgium, France, England & Wales, Sweden, Spain, Poland, Italy and the Netherlands (each a “Foreign Guarantor Jurisdiction”) and no security or guarantees shall be required to be given by Foreign Subsidiaries not incorporated in Foreign Guarantor Jurisdictions.
(b)The parties agree that the overriding intention, subject to paragraph (a) above, is for security only to be granted by, and shall be limited, to a Foreign Note Party which is incorporated in a Foreign Guarantor Jurisdiction in respect only over (and in any case only to the extent commercially and legally feasible in such Foreign Guarantor Jurisdiction):
(A)its Required Accounts (without control over use prior to a Default);
(B)its tangible moveable property;
(C)intra-group receivables owed to such Foreign Note Party;
(D)intellectual property owned by such Foreign Note Party;
(E)insurance policies;
(F)account and trade receivables owed to such Foreign Note Party;
(G)the shares and/or quotas owned in such Foreign Note Party by its direct holding company provided that such direct holding company is also a Note Party and shares owned by such Foreign Note Party in its direct subsidiaries;
(H)fee owned real property having a fair market value in excess of
$10,000,000;
(I)in the case of an English Note Party, its goodwill and uncalled capital;
(J)all of its assets by way of a qualifying floating charge (or equivalent) from an English Note Party and any other Foreign Note Party incorporated in a Foreign Guarantor Jurisdiction with a practical equivalent of an English law floating charge;
(K)tort claims, investments and contractual claims against third parties; and
(L)in the case of a security provider incorporated in Sweden, corporate mortgage (Sw. företagshypotek) over corporate mortgage registrations (Sw. företagsinteckingar).
(the “Overriding Principle”) and that no other security shall be required to be given by any other Foreign Note Party or any other person or in relation to any other asset.
(c)Without prejudice to paragraph (b) above, no guarantees shall be required to be granted by and no security shall be required to be granted by or in (i) any Subsidiary that is an Excluded Subsidiary or (ii) any asset that is an Excluded Asset.
(d)In addition, for the avoidance of doubt, no Foreign Note Party incorporated in France shall be under any obligation pursuant to these Agreed Security Principles to grant security interest on any asset if it is reasonably determined by such Foreign Note Party incorporated in France that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered). If it is reasonably determined by the Company and the Notes Collateral Agent that the applicable time and cost of obtaining such opinion would be disproportionate to the benefit accruing to the Holders of obtaining such security interest, the Foreign Note Party incorporated in France shall not launch the works council’s consultation process and shall not be under any obligation to grant the security interest on such relevant asset.
5.Governing Law and Jurisdiction of Security
(a)Except as described below, all security will be governed by the law of the jurisdiction of incorporation of the applicable grantor of the security.
(b)Share security over any subsidiary will be governed by the law of the place of incorporation of that subsidiary or of the applicable grantor, provided that such place of incorporation is a Foreign Guarantor Jurisdiction, the United States or Canada.
(c)Any security in respect of inventory and if reasonably required by the Notes Collateral Agent, other Required Accounts shall be governed by the law of the jurisdiction in which it is located, provided that the location is a Foreign Guarantor Jurisdiction, the United States or Canada.
(d)Security in relation to any receivables will be governed by the laws of the governing law of such receivables or the place of incorporation of the applicable grantor, provided that such law is the law at a Foreign Guarantor Jurisdiction.
(e)No action in relation to security (including any perfection step, further assurance step, filing or registration) will be required in jurisdictions where the applicable grantor of the security is not incorporated other than in the United States, Canada or another Foreign Guarantor Jurisdiction.
6.Terms of security documents
The following principles will be reflected in the terms of any security taken in connection with the Notes (or any refinancing thereof):
(a)security will be ranking in accordance with the lien priorities in any applicable Intercreditor Agreement;
(b)security will, to the extent possible under local law, not be enforceable until the occurrence of an Event of Default (an “Applicable Event”) which is continuing (and, with respect to security governed by the laws of the Netherlands, constitutes a default in the performance of the secured obligations);
(c)with respect to security interests granted by an Italian Note Party (or governed by Italian law) and a Spanish Note Party, an Applicable Event will be a payment default or the acceleration of the relevant secured obligations;
(d)unless as otherwise required to perfect the security or required by law (e.g. with respect to the power of attorney for the purposes of the notarization of the equity pledge security of any German Note Party or the Spanish law irrevocable power of attorney to be granted in relation to the Spanish law Security), the beneficiaries of the security or any agent will only be able to exercise a power of attorney granted by a Note Party and to exercise any withdrawal rights in respect of a secured asset following (1) the occurrence of an Applicable Event which is continuing or (2) if the relevant Note Party has failed to comply with its obligations under the relevant security documents within five Business Days of request;
(e)the security documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Note Documents; accordingly:
(i)they should not contain identical or additional representations, undertakings or indemnities (including in respect of insurance, information, maintenance or protection of assets or the payment of fees, costs and expenses) unless required for the creation or perfection of security, to maintain effective security or customary in the relevant jurisdiction;
(ii)notwithstanding anything to the contrary in any security document, the terms of a security document shall not operate or be construed so as to prohibit or restrict any transaction, matter or other step permitted by the Note Documents or where the applicable level of holder consent required by the relevant Note Document (“Required Holder Consent”) has been obtained and the Notes Collateral Agent shall (pursuant to its authority under Section 11.07 of the Indenture, and solely in accordance therewith), upon the reasonable request of a Foreign Note Party that grants Collateral (a “Chargor”) (to the extent requested by the Notes Collateral Agent), enter into such documentation and/or take such other action as is required by a Chargor (acting reasonably) in order to facilitate any such transaction, matter or other step, including by way of executing any confirmation, consent to dealing, release or other similar or equivalent document, provided that any costs and expenses incurred by the Notes Collateral Agent entering into such documentation and/or taking such other action at the request of such Chargor pursuant to this paragraph shall be for the account of such Chargor, in accordance with the costs and expenses provisions set out in the Indenture and such provision shall be included in each security document; and
(iii)the security documents should not operate so as to require additional consents or authorisations from the Holders;
(f)security will, where possible, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges or notices to be delivered in respect of future acquired assets in order for effective security to be created over that class of asset, such supplemental pledges or notices will (unless otherwise customary in the relevant jurisdiction) be provided periodically at intervals no more frequent than quarterly (unless required more frequently under local law or local market practice, including if required due to the shorter maturity of the relevant future acquired asset) (or with such higher frequency specified by the Notes Collateral Agent after the occurrence of an Applicable Event);
(g)the security documents will provide that, upon the occurrence of the date on which all Obligations (or Secured Obligations (as defined in the ABL Intercreditor Agreement, in the case of any Common Lien, as defined in the ABL Intercreditor Agreement)) (in each case other than in respect of contingent indemnification and expense reimbursement claims not then due) have been paid in full, the Notes Collateral Agent shall, at the request of and the cost and expense of the Company, and solely with respect to the Obligations (or Secured Obligations), release, reassign or retransfer the respective asset or class of assets to the relevant Note Party, and shall take all actions and execute any and all documents as may be necessary or convenient to evidence the cancellation, release and termination of all guarantees and security pursuant to Sections 10.06 and 11.07 of the Indenture without having to make or being deemed to make any representation or warranty, whether express
or implied, with respect to the relevant payor’s financial soundness and/or any asset or class of assets so released and subject to the rights of any person having prior rights over any such assets; any such release, reassignment, retransfer, cancellation or termination is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in bankruptcy, insolvency, liquidation, administration or otherwise, without limitation, then such security or guarantee will continue or be reinstated as if the release, reassignment, retransfer, cancellation or termination had not occurred;
(h)unless required by local law or customary in the relevant jurisdiction, the circumstances in which the Collateral shall be released should not be dealt with in individual security documents but, if so required, shall, except to the extent required by local law, be the same as those set out in the Note Documents;
(i)other than in each case of any German law share pledge agreement, each security document must contain a clause which records that if there is a conflict between the security document, the Indenture or any applicable Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Indenture and the applicable Intercreditor Agreement will take priority over the provisions of the security document unless and to the extent it would prejudice the legality, creation, priority, perfection, validity or enforceability of such security document or the security created under or pursuant to the security document, save with respect to the release of the security interests where applicable law and market practice require certain additional steps in order to address local law claw back issues (e.g. comfort documents);
(j)each of the security documents will, to the extent possible under local law, include a provision that provides that (i) all rights, protections, limitations on liability, exculpations and indemnifications provided or otherwise afforded to the Trustee and the Notes Collateral Agent under the Indenture, including, without limitation Article 7 of the Indenture, shall apply in all respects to the Notes Collateral Agent as chargee, security trustee or pledgee under the applicable security document, (ii) the applicable security document shall be subject to the provisions of Section 7.07 of the Indenture, which provisions shall apply to the applicable security document mutatis mutandis as though fully set forth therein, with each reference to the Issuer or Company, as applicable, being read to include the applicable chargor or pledgor, (iii) the Notes Collateral Agent may act and exercise rights under the applicable security document, but shall not be obligated to act or exercise rights under the applicable security documents (and shall not incur liability for failure to act or exercise rights) unless directed in writing by the Holders pursuant to Article 6 of the Indenture (or otherwise in accordance with the Indenture); provided that the Notes Collateral Agent shall not be required to take any action or exercise any right that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose the Notes Collateral Agent to liability (financial or otherwise) or that is contrary to any Note Document or applicable laws (for the avoidance of doubt, the Notes Collateral Agent may refrain from acting in accordance with any instructions of any Holder or group of Holders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Note Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions);
(k)subject to (or to the extent permitted by) the applicable law and in accordance with market practice, the terms of the security documents shall secure the Obligations as such Obligations (and/or the Indenture or other Note Documents) (or, where relevant, parallel
debt derived therefrom) may be amended, amended and restated, restated, supplemented, replaced, renewed, restructured, extended, refunded, refinanced or otherwise modified from time to time (including without limitation, where such transactions result in any increases or decreases of the principal amount of the Obligations, any extensions of maturity, any changes in interest rates or other economic terms, or any changes in the Secured Parties, Holders or Holders’ agents) so as to minimize the need for any additional security documents, confirmations, reaffirmations, supplements, amendments or other actions with respect to such security documents in connection with the foregoing; and
(l)each of the security documents will provide that all proceeds will be applied in accordance with the Intercreditor Agreements and Section 6.13 of the Indenture.
7.Shares and/or quotas
(a)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, the legal title of the shares and/or quotas subject to any security will remain with the relevant grantor of the security (unless transfer of title on granting such security is customary in the applicable jurisdiction and does not result in any risk of liability to the Notes Collateral Agent (as advised by the advisors to the Notes Collateral Agent or Holders)).
(b)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, any grantor of share security will be permitted to retain and to exercise all voting rights and powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition, provided that (to the extent permitted by the applicable law) such grantor must not exercise any such voting rights and powers in any manner which:
(i)has the effect of changing the rights of such shares or of any related rights with respect to such shares, unless specifically permitted by the Indenture; or
(ii)adversely affects the validity or enforceability of such share security or causes an Event of Default to occur, or is otherwise materially prejudicial to the interests of the Notes Collateral Agent and/or the Secured Parties.
(c)Where customary and applicable as a matter of law and following a request by the Notes Collateral Agent, as soon as reasonably practicable (taking into account any stamping, endorsement in blank, assignment in blank or other transfer requirements) following the granting of any share security over certificated shares or quotas, the applicable share certificate (or other documents evidencing title to the relevant shares, including any shareholder's register, as applicable) and a stock transfer form executed in blank (or applicable law equivalent) will be provided to the Notes Collateral Agent.
(d)No security shall be required to be granted over any shares or ownership interests in any person that are not directly owned by its immediate holding company.
(e)If required under local law, security over shares and/or quotas will be notarised and registered subject to the general principles set out in these Agreed Security Principles. In particular, but not limited to, to the extent applicable, security over shares and/or quotas issued by a Spanish company will be registered in the relevant registry book of shareholders (libro registro de acciones nominativas) and/or the relevant registry book of
quotaholders (libro registro de socios) or with the relevant depositary entity and on the titles to property over the shares/quotas; with respect to shares in Polish companies, the information on establishment of share security will be entered into the book of shares (księga udziałów) and into the list of shareholders (lista wspólników), which will be filled together with motions for registrations of registered pledges over shares in each Polish company within the relevant registry courts.
(f)Unless the restriction is required by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer, approval requirements or the registration of the transfer of the shares on enforcement of the security granted over them or to allow exercising voting rights by the Notes Collateral Agent or to allow the Notes Collateral Agent to convene a general meeting. To the extent applicable, the applicable grantor of the security will use its commercially reasonable efforts to obtain the registration of any needed amendment of the by-laws with the relevant mercantile registry as soon as practicable.
8.Bank accounts
(a)Until an Applicable Event has occurred and is continuing, unless the Indenture expressly provides for any specific account (by reference to its purpose) to be subject to specific restrictions on use, any Note Party will be free to deal, operate and transact business in relation to any bank accounts over which it grants security (including opening and closing accounts) until the occurrence of an Applicable Event which is continuing.
(b)If required by local law to create or perfect the security, notice of the security will be served on the account bank in relation to applicable accounts within five (5) Business Days of the creation or intended creation of the security over such account, and the applicable grantor of the security will use its commercially reasonable efforts to obtain a signed acknowledgement of that notice. Irrespective of whether notice of the security is required for perfection, if the service of notice would prevent any member of the Group from using a bank account in the course of its business, no notice of security will be served until the occurrence of an Applicable Event that is continuing.
(c)Any security over bank accounts will be subject to any security interests in favour of the account bank, which are created either by law or in the standard terms and conditions of the account bank. No grantor of security will be required to change its banking arrangements or standard terms and conditions in connection with the granting of bank account security, but will, in relation to accounts in Germany, the Netherlands and Belgium, be required to request the account bank to waive such liens pursuant to its general terms and conditions.
(d)[Reserved].
(e)If any bank account is required to be opened as a matter of local law in order to perfect any share security required to be granted in accordance with these Agreed Security Principles,
(i) such bank account shall not be required to be opened prior to the date falling 90 days after such share security is granted and (ii) the Holders authorise the Notes Collateral Agent to enter into any documentation requested by the applicable account bank in connection with such security.
(f)If required under applicable local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
9.Moveable Property
(a)A Foreign Note Party shall grant security over its moveable property, subject to the general principles in these Agreed Security Principles.
(b)No security over inventory needs to be granted by a Foreign Note Party if no security needs to be granted under the ABL Facility.
(c)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Note Documents, the Foreign Note Party providing the security is permitted to dispose of and use its moveable assets in accordance with the terms of the Indenture.
(d)If the granting of effective security over moveable assets gives rise to registration costs or similar taxes or costs, the secured amount under such security will be proportionate to the value of the underlying moveable asset (together with such buffer as may be reasonably agreed by the Notes Collateral Agent with the Company to reflect the fluctuating nature of the asset class), and ‘mandates’ to grant security will be granted where customary.
10.Insurance Policies
(a)Each Foreign Note Party shall grant security over its insurance policies, subject to the general principles in these Agreed Security Principles and other than insurance proceeds which (i) are payable to third parties, such as proceeds under life, health, group insurance or similar third parties liability insurance policies or (ii) benefit to employees and/or directors, if any.
(b)No security will be granted over any insurance policy which does not allow security to be granted or which excludes the assignability of the insurance receivables, other than where such grant of security or such assignment is subject only to the consent of the relevant insurer. The provisions of this paragraph shall not operate to jeopardise any floating charge nor any assignment or other security interest over any and all damages, compensation, proceeds or other income attributable to such insurance policies which such Foreign Note Party may be entitled (or which such Foreign Note Party may be awarded or otherwise derive therefrom).
(c)If required by local law to perfect the security or customary in the relevant jurisdiction, notice of the security will be served on the insurer within five Business Days (or less if required or customary under local law) of the security being granted and such Foreign Note Party shall use its commercially reasonable efforts to obtain a signed acknowledgement of that notice.
11.Intellectual property
(a)A Foreign Note Party shall grant security over its intellectual property, subject to the general principles in these Agreed Security Principles.
(b)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Note Documents, such Foreign Note Party shall be free to deal with, use, licence and
otherwise commercialise those assets in the course of its business (including allowing its intellectual property to lapse if no longer material to its business) to the extent permitted under the Indenture.
(c)No security will be granted over intellectual property which cannot be secured under the terms of any relevant licensing agreement.
(d)If required under local law to create or perfect the relevant security, security over intellectual property shall be notarized and/or registered under the law of the jurisdiction of incorporation or formation of the applicable grantor, and no filings, registrations or other steps shall be required to be taken pursuant to the law of any other jurisdiction other than the United States, Canada or the United Kingdom, subject to the general principles set out in these Agreed Security Principles.
(e)Security over intellectual property rights will be taken on an “as is, where is” basis and such Foreign Note Party will not be required to procure any changes to, or corrections of filings on any registers (unless, subject to this Appendix, such changes to, or corrections of, filings are required to validly create such Security).
12.Receivables
(a)A Foreign Note Party shall grant security over its receivables, subject to the general principles in these Agreed Security Principles.
(b)In respect of security over receivables (other than intra-group receivables), notice of the security shall be served on the relevant debtor (other than an intercompany debtor) immediately after an Event of Default, which is continuing. Notice of security over intercompany receivables shall be served on the relevant intercompany debtor within five
(5) Business Days of the creation of the security over such receivables.
(c)Each Foreign Note Party will use commercially reasonable efforts to amend, after the Issue Date, the respective receivable invoices to mention the Notes Collateral Agent’s security interest in such receivables to the extent required under the laws of the local jurisdiction of the Foreign Note Party to perfect the security interest.
(d)The Notes Collateral Agent will receive a floating charge with respect to receivables to the extent a floating charge can be created under local law.
(e)If required under local law, security over intercompany receivables will be registered and notified to the relevant intra-group debtor subject to the general principles set out in this Appendix.
(f)If a Foreign Note Party grants security over its receivables, it shall be free to deal with, amend, waive or terminate those receivables in the course of its business and in accordance with the terms of the Indenture until the occurrence of an Applicable Event (other than any amendments or waivers that would materially adversely prejudice the rights of the Secured Parties).
(g)No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract or if the terms of the relevant contract exclude the assignability of the trade receivables (unless such restrictions are set aside by overriding
principles of applicable law). The provisions of this paragraph shall not operate to jeopardise any floating charge, any other security interest in respect of such receivables which is not restricted, any trust arrangement in respect of such receivables or any assignment or other security interest over any and all damages, compensation, proceeds, remuneration, profit, rent or other income attributable to such trade receivables which the Foreign Note Party may be entitled (or which such Foreign Note Party may be awarded or otherwise derive therefrom).
(h)If required under local law security over trade receivables will be registered subject to the general principles set out in this Appendix.
(i)Any list of receivables required to be delivered under any security document will not include details of the underlying contracts (but may include non-sensitive generic information to the extent that would allow for the creation of security) unless required under local law or required to enforce the security.
(a)With respect to a French Note Party, such French Note Party will grant security over its commercial receivables by way of assignment of any existing or future receivable (créance existante ou future) due or to be due by any existing or future debtor to such French Note Party, in each case as originated by such French Note Party, pursuant to articles L. 313-23 et seq. of the French Monetary and Financial Code (Code monétaire et financier).
13.Additional Principles
These Agreed Security Principles embody the recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or commercially reasonable guarantees and/or security from Foreign Note Parties in each jurisdiction in which it has been agreed that guarantees and security will be granted by those Foreign Note Parties. In particular:
(a)general legal and statutory limitations, regulatory restrictions (including foreign exchange controls), financial assistance, anti-trust and other competition authority restrictions, corporate object, corporate benefit, fraudulent preference, legal and equitable subordination, "transfer pricing", "thin capitalisation", "earnings stripping", "exchange control restrictions", "capital maintenance" rules and "liquidity impairment" rules, tax restrictions, retention of title claims, employee consultation or approval requirements and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited accordingly, provided that, to the extent requested by the Notes Collateral Agent or the Trustee before signing any applicable security or accession document, the relevant member of the group consisting of the Company and its Subsidiaries (the “Group”) shall use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(b)a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or registration) is the applicable time and cost (including adverse effects on taxes, interest deductibility, stamp duty, registration taxes, notarial costs, guarantee fees payable to any person that is not a member of the Group and all applicable legal fees) which will not be disproportionate to the benefit accruing to
the Holders of obtaining such guarantee or security, as determined by the Company and the Notes Collateral Agent);
(c)unless otherwise required by the Indenture, members of the Group will not be required to give guarantees or enter into security documents if they are not directly or indirectly wholly owned by the Company or if it is not within the legal capacity of the relevant members of the Group or if it would conflict with the fiduciary or statutory duties of their directors or contravene any applicable legal, regulatory or contractual prohibition or restriction or have the potential to result in a material risk of personal or criminal liability for any director or officer of or for any member of the Group, provided that, to the extent requested by the Notes Collateral Agent or the Trustee before signing any applicable security document or accession document, the relevant member of the Group shall, in relation to a contractual prohibition or restriction only, use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(d)having regard to the principle in paragraph (b) above, the Company and the Notes Collateral Agent shall discuss in good faith (having regard to customary practice in applicable jurisdictions) with a view to determining whether certain security can be provided by the relevant Foreign Note Party granting a promise to pledge in favour of the Secured Parties coupled with an irrevocable power of attorney to the Notes Collateral Agent as opposed to a definitive legal mortgage or pledge over the relevant asset;
(e)guarantees and security will be limited so that the aggregate of notarial costs and all registration and like taxes and duties relating to the provision of security will not exceed an amount to be agreed between the Company and the Notes Collateral Agent;
(f)where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security to the Secured Parties, as determined by the Company and the Notes Collateral Agent, security will be granted over the material assets only;
(g)it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets, as determined by the Company and the Notes Collateral Agent, in which event security will not be taken over such assets;
(h)in each case to the extent the applicable restriction, condition or third party right did not arise in contemplation of the relevant guarantee or grant of security, any asset subject to a legal requirement, contract, lease, licence, instrument, regulatory constraint (including any agreement with any government or regulatory body) or other third party arrangement, which may prevent or condition the asset from being charged, secured or being subject to the applicable security document (including requiring a consent of any third party, supervisory board or works council (or equivalent)) and any asset which, if subject to the applicable security document, would give a third party the right to terminate or otherwise amend any rights, benefits and/or obligations with respect to any member of the Group in respect of the asset or require the relevant chargor to take any action materially adverse to the interests of the Group or any member thereof, in each case will be excluded from a guarantee or security document, provided that commercially reasonable efforts to obtain consent to securing any asset (where otherwise prohibited) shall be used by the Group if the Notes Collateral Agent specifies prior to the date of the security or accession document
that the asset is material and the Company is satisfied that such endeavors will not involve placing relationships with third parties in jeopardy;
(i)the giving of a guarantee, the granting of security and the registration and/or the perfection of the security granted will not be required if it would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Note Documents (including dealing with the secured assets and all contractual counterparties or amending, waiving or terminating (or allowing to lapse) any rights, benefits or obligations, in each case prior to an Applicable Event which is continuing), and any requirement under these Agreed Security Principles to seek consent of any person or take or not take any other action shall be subject to this paragraph (i);
(j)any security document will only be required to be notarised if required by law in order for the relevant security to become effective (including against third parties), enforceable or admissible in evidence (including without limitation evidence before third parties);
(k)to the extent possible and unless required by applicable law in order for any assignee or transferee to benefit from the guarantees or security, there should be no action required to be taken in relation to the guarantees or security when any secured party assigns or transfers any of its participation to a new secured party (and, unless explicitly agreed to the contrary in the Note Documents, no Foreign Note Party shall bear or otherwise be liable for any taxes, any notarial, registration or perfection fees or any other costs, fees or expenses that result from any transfer by a Holder except if an Applicable Event has occurred and is continuing);
(l)no title investigations or other diligence on assets will be required and no title insurance will be required;
(m)security will not be required over any cash constituting regulatory capital or customer cash (and such assets or cash shall be excluded from any relevant security document);
(n)to the extent legally effective, all security will be given in favour of the Notes Collateral Agent and not the Secured Parties individually (with the Notes Collateral Agent to hold one set of security documents for all the Secured Parties unless otherwise required by local law); "parallel debt" provisions will be used where necessary and recognised; for the avoidance of doubt, in relation to accessory security under German law (akzessorische Sicherheiten), such security will be given in favour of the Notes Collateral Agent and the Secured Parties; it is acknowledged that certain security will be granted for those Secured Parties that satisfy any local law requirements necessary to benefit from such security;
(o)each security document shall be deemed not to restrict or condition any transaction permitted under the Note Documents and the security granted under each security document entered into after the Issue Date shall be deemed to be subject to these Agreed Security Principles, before and after the execution of the relevant security document and creation of the relevant security;
(p)each security document must be provided on terms which are not inconsistent with the turnover or sharing provisions in the Domestic Guarantee Agreement, the Foreign Guarantee Agreement and/or the Indenture;
(q)no guarantee or security shall guarantee or secure any "Excluded Swap Obligations" defined in accordance with the LSTA Market Advisory Update dated February 15, 2013 entitled "Swap Regulations' Implications for Note Documentation", and any update thereto by the LSTA;
(r)no translation of any document relating to any security or any asset subject to any security will be required to be prepared or provided to the Secured Parties, unless (i) any document which is to be signed by the Notes Collateral Agent or any notice to be delivered to the Notes Collateral Agent or (ii) required for such documents to become effective or admissible in evidence or (iii) an Applicable Event is continuing; and
(s)local security documents may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and delivery of an executed counterpart to any security document by facsimile transmission or other electronic transmission (such as .pdf) shall be effective as delivery of a manually signed counterpart, in each case to the extent such execution is effective under local law.
14.Amendment
In any event of any material conflict or material inconsistency between any term of these Agreed Security Principles and any term of a Collateral Document or a guarantee, the Secured Parties authorize, instruct and direct the Notes Collateral Agent to, and the Notes Collateral Agent (or the Secured Parties, if required under the relevant jurisdiction) shall promptly (at the option and upon request of the Company prior to the occurrence of a Default which is continuing) (i) enter into (and notarise if required under the relevant jurisdiction) such amendments to such Collateral Document or guarantee or (ii) release and terminate such Collateral and enter into a replacement Collateral Document or guarantee on such amended terms, in each case as shall be necessary or desirable to cure such conflict or inconsistency, provided that (1) any such action (including any actions to be taken by the Holders) will be at the sole cost of the Company; (2) the relevant Note Party shall deliver all corporate authorities and legal opinions as may be required by the Notes Collateral Agent; and (3) no such action will be required to be taken in the event such amendment or replacement Collateral Document or guarantee would result in any hardening period or clawback period to be reset.
15.Execution of applicable Intercreditor Agreements
Any Foreign Note Party, existing on the Issue Date or hereinafter incorporated, shall sign or acknowledge, as applicable, any Intercreditor Agreement.
APPENDIX C
FOREIGN COLLATERAL DOCUMENTS
| | | | | |
| Jurisdiction | Security Documents |
Belgium | 1.A Belgian law governed Omnibus Pledge Agreement covering receivables, bank accounts and the business; and
2.Deposit account control agreement(s). |
| | | | | |
France | 1.Master Daily Assignment Agreement (ABL);
2.First Ranking Bank Accounts Pledge Agreement (ABL);
3.Deposit account(s) control agreement(s) (ABL);
4.First Ranking Intragroup Receivables Pledge Agreement (ABL);
5.Fourth Ranking Pledge of Securities Account Agreement (ABL), together with the related statement of pledge;
6.First Ranking Pledge over future refunding receivables agreement (superpriority credit agreement);
7.Second Ranking Bank Accounts pledge agreement (superpriority credit agreement);
8.Second Ranking Intragroup Receivables Pledge Agreement (superpriority credit agreement);
9.First Ranking Pledge of securities account agreement (superpriority credit agreement), together with the related statement of pledge;
10.Second Ranking Pledge over future refunding receivables agreement (2025 U.S. notes);
11.Third Ranking Bank Accounts Pledge Agreement (2025 U.S. notes);
12.Third Ranking Intragroup Receivables Pledge Agreement (2025 U.S. notes);
13.Second Ranking Pledge of Securities Account Agreement (2025 U.S. notes), together with the related statement of pledge;
14.Second Ranking Pledge over future refunding receivables agreement (2025 E.U. notes);
15.Third Ranking Bank Accounts Pledge Agreement (2025 E.U. notes); |
| | | | | |
| Jurisdiction | Security Documents |
| 16.Third Ranking Intragroup Receivables Pledge Agreement (2025 E.U. notes);
17.Second Ranking Pledge of Securities Account Agreement (2025 E.U. notes), together with the related statement of pledge;
18.Second Ranking Pledge over future refunding receivables agreement (2025 credit agreement);
19.Third Ranking Bank Accounts Pledge Agreement (2025 credit agreement);
20.Third Ranking Intragroup Receivables Pledge Agreement (2025 credit agreement);
21.Second Ranking Pledge of Securities Account Agreement (2025 credit agreement), together with the related statement of pledge;
22.Third Ranking Pledge over future refunding receivables agreement (2026 notes);
23.Fourth Ranking Bank Accounts Pledge Agreement (2026 notes);
24.Fourth Ranking Intragroup Receivables Pledge Agreement (2026 notes); and
25.Third Ranking Pledge of Securities Account Agreement (2026 notes), together with the related statement of pledge. |
Germany | 1.German Receivables Assignment Agreement;
2.German Bank Account Pledge Agreement;
3.Transfer Agreement over Inventory;
4.GmbH Share Pledge Agreement;
5.KG Interest Pledge Agreement; and
6.IP Assignment Agreement. |
Italy | 1.Italian Bank Account Pledge Agreement;
2.Italian Agreement for the Assignment by way of Security of Receivables; and
3.Notarial quota pledge over the Italian company. |
| | | | | |
| Jurisdiction | Security Documents |
Netherlands | 1.A Dutch law governed security agreement purporting to create security over all Dutch assets, i.e. omnibus security (including A/R, inventory, bank accounts, IP, etc.);
2.Dutch notarial deed of pledge of shares – Diebold Nixdorf Dutch Holding B.V.;
3.Dutch notarial deed of pledge of shares – Diebold Nixdorf Global Holding B.V.;
4.Dutch notarial deed of pledge of shares – Diebold Nixdorf B.V.;
5.Dutch notarial deed of pledge of shares – Diebold Nixdorf Global Solutions B.V.;
6.Dutch notarial deed of pledge of shares – Diebold Nixdorf Software Partner B.V.;
7.Dutch partnership interest security agreement – Diebold Nixdorf Software Partner C.V.; and
8.Dutch IP security agreement – WINCOR NIXDORF International GmbH, Diebold Nixdorf, Incorporated and Diebold Nixdorf Systems GmbH. |
| | | | | |
Poland | 1.Assignment of rights under commercial contracts and insurance agreements - Diebold Nixdorf sp. z o.o.;
2.Assignment of rights under commercial contracts and insurance agreements - Diebold Nixdorf BPO sp. z o.o.;
3.Agreement for civil and registered pledges over bank accounts - Diebold Nixdorf sp. z o.o.;
4.Agreement for civil and registered pledges over bank accounts - Diebold Nixdorf BPO sp. z o.o.;
5.Power of attorney to the bank accounts - Diebold Nixdorf sp. z o.o.;
6.Power of attorney to the bank accounts - Diebold Nixdorf BPO sp. z o.o.; 7.Agreement for registered pledge over movable property and rights - Diebold Nixdorf sp. z o.o.;
8.Agreement for registered pledge over movable property and rights - Diebold Nixdorf BPO sp. z o.o.;
9.Agreement on the ordinary and registered pledges over shares in Diebold Nixdorf sp. z o.o.; |
| | | | | |
| Jurisdiction | Security Documents |
|
10.Agreement on the ordinary and registered pledges over shares in Diebold Nixdorf BPO sp. z o.o.;
11.Submission to enforcement - Diebold Nixdorf sp. z o.o.; and
12.Submission to enforcement - Diebold Nixdorf BPO sp. z o.o. |
Spain | 1.Spanish pledge over quota shares in Diebold Nixdorf, S.L.
2.Spanish law amendment, extension and ratification of the Spanish pledge over credit rights, bank account pledge, inventory pledge and ancillary irrevocable power of attorney granted by the Spanish Loan Parties
3.Deposit Account Control Agreement; and
4.Deed of irrevocable power of attorney to be granted in favor of the collateral agent related to the pledge over quota shares |
Sweden | 1.Receivables pledge/assignment agreement;
2.Bank account pledge agreement;
3.Share pledge agreement over the shares in the Swedish company;
4.Business mortgage pledge agreement; and
5.Insurance pledge agreement. |
UK | 1.English law security agreement (i.e. the English law debenture);
2.English law share charge;
3.English law floating charge;
4.Deposit account control agreement(s);
5.a charge over UK IP held by non-UK Loan Parties; and
6.a charge over UK bank accounts held by US and Canadian Loan Parties. |
EXHIBIT A
POST-CLOSING MATTERS
Section 1. Less than 30 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
1. | UK | Diebold Nixdorf (UK) Limited to deliver notices to its UK account banks in the agreed form as between UK counsel | On the Issue Date |
2. | Belgium | Diebold Nixdorf BV (Belgium) will deliver to the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) the certificate of receivables pledge, duly printed on its letterhead and executed by an authorised representative | On the Issue Date |
3. | Belgium | Diebold Nixdorf BV (Belgium) will register the omnibus pledge agreement with the National Pledge Register | On the Issue Date |
4. | Netherlands | Registration of the Dutch law governed security agreement dated on Issue Date and made among the Dutch Guarantors as pledgors and the Notes Collateral Agent as pledgee (the "Dutch Security Agreement") | 2 Business Days from the Issue Date |
5. | Netherlands | Delivery of the notices required to be sent to Group Companies and/or Insurance Companies (as defined therein) pursuant to the Dutch Security Agreement | As provided for the Dutch Security Agreement |
6. | Poland | Delivery of notices to the Insurance Companies (if any) of the assignment in accordance with the paragraph 2.7 a) of the Polish Assignment of Rights agreement | 5 Business Days from the Issue Date |
7. | Sweden | Delivery of a duly executed application form in regards to the Swedish corporate mortgage | 5 Business Days from Issue Date |
8. | Belgium | Diebold Nixdorf BV (Belgium) is to deliver notices to its account banks in the agreed form as between Belgian counsel. | Within 5 Business Days from the Issue Date |
9. | Belgium | Diebold Nixdorf BV (Belgium) is to deliver notices in relation to disclosed receivables to the relevant debtors in the agreed form as between Belgian counsel. | Within 5 Business Days from the Issue Date |
| 10 | Germany | Notice to the accounts banks of the pledge over the existing deposit accounts under the German law account pledge agreement (initial notice) | Within 5 Business Days from the Issue Date |
| | | | | | | | | | | |
| 11 | Germany | The German Guarantors shall deliver notice to the relevant Debtors of the assignment of the Intra-Group Receivables under the German law security assignment agreement | Within 5 Business Days from the Issue Date |
| 12 | Germany | The German Guarantors shall deliver to the relevant Debtors (insurance company) of the assignment of the Insurance Claims under the German law security assignment agreement | Within 5 Business Days from the Issue Date |
| 13 | Poland | Execution of Polish submission to enforcement by Polish Guarantors before notary in Poland | 7 Business Days from the Issue Date |
| 14 | Poland | Filing with a relevant registration court the applications for registration of the registered pledges in accordance with each (i) Polish agreement for registered pledge over enterprise; and (ii) Polish agreement for civil and registered pledges over bank accounts. | 7 Business Days from the Issue Date |
| 15 | Poland | Filing with each account bank the notice on the creation of each civil pledge established in accordance with each Polish agreement for civil and registered pledges over bank accounts | 7 Business Days from the Issue Date |
| 16 | UK | Registration by Ashurst LLP of the English debenture executed at Closing | 21 days from the Issue Date |
| 17 | UK | Wincor Nixdorf International GmbH to deliver original share certificates and stock transfer forms executed in blank in relation to its shares in Diebold Nixdorf (UK) Limited to the Superpriority Credit Facility Collateral Agent | 21 days from the Issue Date |
| 18 | US | A New York Law intellectual property Security Agreement in respect of US-registered intellectual property owned by Foreign Loan Parties. | 21 days from the Issue Date |
| 19 | US | Joinders to the Intercompany Subordination Agreement | 21 days from the Issue Date |
| 20 | US | Deliver to the Superpriority Credit Facility Collateral Agent original share certificates and related stock transfer forms executed in blank and promissory notes and related allonges, in each case, constituting Collateral | 21 days from the Issue Date |
Section 2. 30 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
Security Documents |
| 1. | Sweden | A Swedish law governed insurance pledge agreement between each Swedish Guarantor as pledgor and the Notes Collateral Agent as pledgee | 30 days from the Issue Date |
| 2. | Sweden | Notice under Swedish Account pledge to applicable Required Accounts depository banks (although email notice to be sent on Issue Date) | 30 Business Days from the Issue Date |
| 3. | UK | An English law governed bank account charge between Diebold Nixdorf, Incorporated as chargor and the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) | 30 days from the Issue Date |
| 4. | UK | An English law governed bank account charge between Diebold Nixdorf Canada Limited as chargor and the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) | 30 days from the Issue Date |
| 5. | Spain | Notarisation of a Spanish law pledge over credit rights between the Spanish Loan Parties as pledgor, the lenders under the ABL Facility and the Notes Collateral Agent as pledgees and the extension and ratification of the ancillary irrevocable power of attorney. | 30 days from the Issue Date |
Other |
| 6. | Sweden | Notice in relation to the Swedish insurance pledge to be delivered by the Swedish Guarantors | 5 Business Days from entering into the Swedish Insurance Pledge |
Section 3. 90 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
Security Documents |
1. | German | A German law share pledge agreement in respect of the shares of Diebold Nixdorf Holding Germany GmbH, WINCOR NIXDORF International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, WINCOR NIXDORF Facility GmbH, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Nixdorf Finance Germany GmbH and Diebold Nixdorf Global Logistics GmbH between Diebold Nixdorf, Incorporated, Diebold Nixdorf Holding Germany, WINCOR NIXDORF International GmbH and Diebold Nixdorf Logistics GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
2. | German | A German law interest pledge over the general partner's interest held by Diebold Nixdorf Security GmbH and the limited partner's interest held by WINCOR NIXDORF Facility GmbH in Diebold Nixdorf Real Estate GmbH & Co. KG | 90 days from the Issue Date |
3. | German | A German law assignment agreement relating to intellectual property between Diebold Nixdorf Holding Germany GmbH, WINCOR NIXDORF International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, WINCOR NIXDORF Facility GmbH, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Nixdorf Finance Germany GmbH and Diebold Nixdorf Global Logistics GmbH as assignors and the Notes Collateral Agent as assignee | 90 days from the Issue Date |
4. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf B.V between WINCOR NIXDORF International GmbH, as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf B.V. as company | 90 days from the Issue Date |
5. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Software Partner B.V. between Diebold WINCOR NIXDORF International | 90 days from the Issue Date |
| | | | | | | | | | | |
| | GmbH as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Software Partner B.V. as company | |
6. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Dutch Holdings B.V. between Diebold Nixdorf, Incorporated as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Dutch Holdings B.V. as company | 90 days from the Issue Date |
7. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Global Holdings B.V. between Diebold Nixdorf, Incorporated as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Global Holdings B.V. as company | 90 days from the Issue Date |
8. | Netherlands | A Dutch law governed share pledge in respect of the shares in Diebold Nixdorf Global Solutions B.V. between Diebold Nixdorf Software C.V. as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Global Solutions B.V. as company | 90 days from the Issue Date |
9. | Netherlands | A Dutch law governed partnership interest security agreement in respect of the partnership interest in Diebold Nixdorf Software C.V. between Diebold Nixdorf Global Holdings, B.V. and IP Management GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
10 | Netherlands | A Dutch law governed notarial deed of change of priority in relation to the existing Dutch notes security between U.S. Bank Trustees Limited, U.S. Bank National Association and the Notes Collateral Agent | 90 days from the Issue Date |
11 | Netherlands | A Dutch law governed IP security agreement between WINCOR NIXDORF International GmbH, Diebold Nixdorf, Incorporated and Diebold Nixdorf Systems GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
12 | Netherlands | Registration of the Dutch notarial deeds of pledge in the original shareholders register of each Dutch company (done by Stibbe notary) | 90 days from the Issue Date |
13 | Italy | A notarial quota pledge over the Italian Guarantors between WINCOR NIXDORF International GmbH, as pledgor and the Notes Collateral Agent as pledgee - to be executed before Saville in London by Saville's clerks on behalf of the Notes Collateral Agent (acting on behalf of all the secured parties) on the basis of a PoA already executed and issued by the Notes Collateral Agent | 90 days from the Issue Date |
14 | Spain | Notarisation of a Spanish law governed quota share pledge in respect of the quota shares in the Spanish Guarantors | 90 days from the Issue Date |
| | | | | | | | | | | |
| | between WINCOR NIXDORF International GmbH, as pledgor, lenders under the ABL Facility and the Notes Collateral Agent as pledgees and the extension and ratification of the ancillary irrevocable power of attorney. | |
15 | Spain | Deed of irrevocable power of attorney to be granted in favor of the Notes Collateral Agent related to the pledge over quota shares | 90 days from the Issue Date |
16 | Spain | Notarisation of the Spanish law amendment, extension and ratification of the Spanish pledge over bank account pledge, inventory pledge and ancillary irrevocable powers of attorney granted by the Spanish Guarantors | 90 days from the Issue Date |
17 | Spain | Spanish public deed raising to the status of Spanish public document a pdf executed copy of the Indenture | 90 days from the Issue Date |
18 | Spain | Spanish public deed raising to the status of Spanish public document a pdf executed copy of the Multi Lender ICA and the Junior Lien ICA | 90 days from the Issue Date |
19 | France | Pursuant to the French Pledge of Securities Account Agreements, the French Guarantors shall procure that the Special Account Provider shall (1) open the Special Account and provide forthwith the banking details to the Notes Collateral Agent and (2) procure that a signed Special Account Confirmation of Pledge ("attestation de constitution de nantissement de compte fruits et produits") is delivered to the Notes Collateral Agent with respect to the Special Account. | 90 days from the Issue Date |
20 | Sweden | A Swedish law governed share pledge in respect of the shares in the Swedish Guarantors between WINCOR NIXDORF International GmbH, as pledgor and the Notes Collateral Agent as pledgee. For the perfection of the Swedish share pledge, WINCOR NIXDORF International GmbH shall on the day of entering into the share pledge (i) deliver to the Superpriority Credit Facility Collateral Agent original share certificate(s) evidencing the shares pledged, duly endorsed in blank, (ii) send a notice of the pledge to the Swedish company and (iii) procure that the pledge is duly registered in the Swedish company's share register. | 90 days from the Issue Date |
21 | Poland | Polish law agreement on the ordinary and registered pledges over shares in Diebold Nixdorf sp. z o.o. | 90 days from the Issue Date |
| | | | | | | | | | | |
22 | Poland | Polish law agreement on the ordinary and registered pledges over shares in Diebold Nixdorf BPO sp. z o.o. | 90 days from the Issue Date |
23 | UK | English law charge over UK IP held by non-UK Guarantors | 90 days from the Issue Date |
24 | US | New York law pledge agreement by Diebold Nixdorf Global Holding B.V. in respect of (a) the membership interests of Diebold Mexico Holding Company, LLC and (b) the securities of Diebold Nixdorf Canada Limited | 90 days from the Issue Date |
25 | US | The Company and the Domestic Guarantors shall cause (i) each liability policy of insurance (other than directors' and officers' policies and workers' compensation policies) to name the Notes Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its interests may appear and (ii) each property insurance policy to contain a loss payable clause and endorsement that names the Notes Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder | 90 days from the Issue Date |
Other |
26 | Spain | A notarised and apostilled power of attorney to be granted by each pledgee under the Spanish inventory pledge, appointing their counsel to execute the amendments to the Spanish inventory pledge, bank account pledge and the inventory pledge and ratification of ancillary irrevocable power of attorney before notary. | On or prior to the date of execution of the amendments to the Spanish security documents |
27 | Spain | Spanish public documents need to be executed before the Spanish notary. | On or prior to the date of execution of the amendments to the Spanish security documents |
28 | Spain | Pledge over quota shares: notarisation of the deed of pledge as Spanish Public Document and registration of the pledge in the registry book of shareholders. | On or prior to the date of execution of the amendments to the Spanish security documents |
29 | Italy | (i) Delivery of the original deed to an Italian notary appointed by the company for its deposit in the competent register; and (ii) issuance of the Italian validity legal opinion on the security document from Ashurst Milano. | 90 days from the Issue Date |
| | | | | | | | | | | |
30 | Netherlands | A notarised and apostilled power of attorney to be granted by the Notes Collateral Agent in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
31 | Netherlands | A notarised and apostilled power of attorney to be granted by WINCOR NIXDORF International GmbH in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
32 | Netherlands | A notarised and apostilled power of attorney to be granted by Diebold Nixdorf, Incorporated in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
33 | Netherlands | Notarised powers of attorney to be granted by each of the Dutch entities in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
34 | German | A power of attorney to be granted by the Notes Collateral Agent as pledgee under the German law share pledge agreements, appointing its counsel to execute the German law share pledge agreements before notary | On or prior to the date the German law share pledge agreements are executed |
35 | Poland | Evidence of filing duly completed applications with respect to registered Polish law pledges over shares, together with evidence of payment of all relevant court fees and/or stamp duties; | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
36 | Poland | List of shareholders evidencing the establishment of Polish law ordinary and registered pledge over shares | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
| | | | | | | | | | | |
37 | Poland | Poland: share register evidencing the establishment of ordinary and registered pledge over shares | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
38 | Sweden | Delivery of original share certificate, endorsed in blank, of Swedish Guarantors to the security agent | On the day of entering into of the security agreement |
39 | Poland | Evidence of filing or of dispatch of duly completed notices and confirmations (in the form set out in the security assignment agreement) for any assigned rights under the security assignment agreement | 90 days from the Issue Date |
40 | Poland | Evidence of filing duly completed applications, notices to account banks and acknowledgements in relation to pledges over enterprise and over the bank accounts and shares (as applicable), together with evidence of payment of all relevant court fees and/or stamp duties | 90 days from the Issue Date |
41 | Poland | Registration of registered pledges over enterprise, bank accounts and shares | 90 days from the Issue Date |
42 | Poland | Subject to provisions of the ABL Credit Agreement, Diebold Nixdorf BV shall procure to obtain the fully executed deposit account control agreement by each of the account banks in respect of each collection account. Diebold Nixdorf BV shall deliver to the pledgee and the notes representative a copy of the acknowledgment, duly executed by each account bank, in the timeframe specified in the ABL Credit Agreement. | 90 days from the Issue Date |
[FORM OF FACE OF NOTE]
[Insert the Restricted Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Global Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Definitive Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the ERISA Legend, if applicable, pursuant to the provisions of the Indenture.]
[Insert the OID Legend, if applicable, pursuant to the provisions of the Indenture.]
[RULE 144A][REGULATION S][IAI][GLOBAL] NOTE
9.375% Senior Secured Notes due 2025
No. [RA- ] [RS- ] [RIAI- ] [U- ] [Up to]2 [$ ]
DIEBOLD NIXDORF, INCORPORATED
promises to pay to [CEDE & CO.]3 [ ] or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto]4 [of $ ( Dollars)]5 on July 15, 2025. Interest Payment Dates: January 15 and July 15 Record Dates: January 1 and July 1
1
For Notes issued July 25, 2020
Rule 144A Note CUSIP: 253657AA8 Rule 144A Note ISIN: US253657AA82
Regulation S Note CUSIP: U25317AA3 Regulation S Note ISIN: USU25317AA30 IAI Note CUSIP: 253657 AB6
IAI Note ISIN: US253657AB65
For Notes issued December 29, 2022 Rule 144A Note CUSIP: 253651AD5
Rule 144A Note ISIN: US253651AD51
Regulation S Note CUSIP: U25317AB1 Regulation S Note ISIN: USU25317AB13 IAI Note CUSIP: 253651AE3
IAI Note ISIN: US253651AE35
2 Include in Global Notes.
3 Include in Global Notes
4 Include in Global Notes
5 Include in Definitive Notes
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
By: |
Authorized Signatory |
Dated:
[Reverse Side of Note]
9.375% Senior Secured Notes due 2025
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1.INTEREST. Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), promises to pay interest on the principal amount of this Note at 9.375% per annum until but excluding maturity. The Company shall pay interest semi-annually in arrears on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including [July 25, 2020]6[December 29, 2022]7; provided that the first Interest Payment Date shall be [January 15, 2021]8[January 15, 2023]9. The Company shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
2.METHOD OF PAYMENT. The Company shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of business on January 1 or July 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, even if such Notes are canceled after such Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Principal, premium, if any, and interest on the Notes shall be payable at the office or agency of the Company maintained for such purpose or, at the option of the Company, payment of interest and premium, if any, may be made by check mailed to the Holders at their respective addresses set forth in the Note Register; provided that payment by wire transfer of immediately available funds shall be required with respect to principal, premium, if any, and interest on all Global Notes and all other Notes the Holders of which shall have provided wire transfer instructions to the Company or the Paying Agent at least five Business Days prior to the applicable payment date. Such payments shall be in such coin or currency of the United States as at the time of payment is legal tender for payment of public and private debts.
3.PAYING AGENT AND REGISTRAR. Initially, U.S. Bank Trust Company, National Association, the Trustee under the Indenture, shall act as Paying Agent and Registrar. The Company may change any Paying Agent or Registrar without notice to the Holders. The Company or any of its Subsidiaries may act in any such capacity.
4.INDENTURE. The Company issued the Notes[, which are Additional Notes,]10 under an Indenture, dated as of July 20, 2020 and amended and restated as of December 29, 2022 (as further amended or supplemented from time to time, the “Indenture”), among Diebold Nixdorf,
6 For Existing Notes
7 For Exchange Notes
8 For Existing Notes
9 For Exchange Notes
10 For Exchange Notes
Incorporated, the Guarantors named therein, the Trustee and the Notes Collateral Agent. This Note is one of a duly authorized issue of notes of the Company designated as its 9.375% Senior Secured Notes due 2025. [The Company shall be entitled to issue Additional Notes pursuant to Section 2.01 and 4.09 of the Indenture.]11 The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5.REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. The Company shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
6.DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and Holders shall be required to pay any taxes and fees required by law or permitted by the Indenture. The Company need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered for repurchase in connection with a Change of Control Offer or Asset Disposition Offer, except for the unredeemed portion of any Note being redeemed or repurchased in part.
7.PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
8.AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Note Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
9.DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Company, the Guarantors, the Trustee, the Notes Collateral Agent and the Holders shall be as set forth in the applicable provisions of the Indenture.
10.AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual, electronic or facsimile signature of the Trustee.
11.GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE NON- EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE
11 For Existing Notes
NOTES OR THE NOTE GUARANTEES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13.CUSIP AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Notes, and the Trustee may use CUSIP and ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
14.SECURITY. The Notes and the Note Guarantees will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the Trustee and the Holders, in each case pursuant to the Collateral Documents and the Intercreditor Agreements. Each Holder, by accepting this Note, consents and agrees to the terms of the Collateral Documents and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements, and to perform its obligations thereunder in accordance therewith.
15.INTERCREDITOR AGREEMENTS. Anything herein to the contrary notwithstanding, the liens and security interests securing the Obligations evidenced by this Note, the exercise of any right or remedy with respect thereto, and certain of the rights of the Holder hereof are subject to the provisions of the Intercreditor Agreements. In the event of any conflict between the terms of any Intercreditor Agreement and this Note, the terms of the applicable Intercreditor Agreement shall govern and control.
The Company shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Company at the following address:
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
This certificate relates to $ principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned (check one box below):
has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note held by the Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)to the Company or subsidiary thereof; or
(2)to the Registrar for registration in the name of the Holder, without transfer; or
(3)pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or
(4)to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
(5)pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter through Euroclear or Clearstream); or
(6)to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7)under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements; or
(7)pursuant to Rule 144 under the Securities Act; or
(8)pursuant to another available exemption from registration under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (5), (6), (7) or (8) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
| | |
Your Signature |
Date: |
Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
NOTICE: To be executed by
an executive officer
Name: Title:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE12
The undersigned represents and warrants that either:
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
Dated:
Your Signature
12 Include only for Regulation S Global Notes.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of this Note purchased by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state the amount you elect to have purchased:
$ (integral multiples of $1,000,
provided that the unpurchased portion must be in a minimum principal amount of $2,000)
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is $ . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
| | | | | | | | | | | | | | |
Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Trustee, Depositary or Custodian |
*This schedule should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal amount of the 9.375% Senior Secured Notes due 2025 (the “Notes”) of Diebold Nixdorf, Incorporated (the “Company”).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows: Name:
Address: Taxpayer ID Number:
The undersigned represents and warrants to you that:
1.We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor”, and we are acquiring the Notes, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2.We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes only in accordance with the Restricted Notes Legend (as such term is defined in the indenture under which the Notes were issued) on the Notes and any applicable securities laws of any state of the United States. If any resale or other transfer of the Notes is proposed to be made pursuant to clause (e) of the Restricted Notes Legend, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and
the Trustee reserve the right prior to the offer, sale or other transfer of the Notes with respect to applicable transfers described in the Restricted Notes Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company and the Trustee.
TRANSFEREE: ,
by:
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this “Supplemental Indenture”), dated as of [ ] [ ], 20[ ], among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”),
[ ] (the “Guaranteeing Subsidiary”), a subsidiary of the Company, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and GLAS AMERICAS LLC, as notes collateral agent (the “Notes Collateral Agent”).
W I T N E S E T H
WHEREAS, each of the Company and the Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee and the Notes Collateral Agent an indenture dated as of July 20, 2025 and amended and restated on December 29, 2022 (as may be further amended from time to time, the “Indenture”), providing for the issuance of 9.375% Senior Secured Notes due 2025 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Notes Collateral Agent are authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1.Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.Guarantor. The Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 12 thereof.
3.Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
5.Headings. The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
6.Guarantee Limitations Language. [To be inserted if applicable based on
jurisdiction].
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
| | |
[NAME OF GUARANTEEING SUBSIDIARY] |
By: |
| Name: |
| Title: |
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
By: |
| Name: |
| Title: |
GLAS AMERICAS LLC, as Notes Collateral Agent |
By: |
| Name: |
| Title: |
Exhibit 4.4
FIRST SUPPLEMENTAL INDENTURE
First Supplemental Indenture (this “First Supplemental Indenture”), dated as of December 29, 2022, by and among Diebold Nixdorf Dutch Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Issuer”), Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the existing Guarantors (as defined in the Indenture referred to below) party thereto, and each of the guaranteeing subsidiaries listed under Schedule I (the “Guaranteeing Subsidiaries”), all of which are subsidiaries of the Company, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and U.S. Bank Trustees Limited, as notes collateral agent (the “Existing Notes Collateral Agent”), and GLAS Americas LLC, as replacement collateral agent under the Indenture (the “New Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Issuer, the Company and the Guarantors has executed and delivered to the Trustee and the Existing Notes Collateral Agent an indenture, dated as of July 20, 2020 (the “Indenture”), providing for the issuance of an unlimited aggregate principal amount of 9.000% Senior Secured Notes due 2025 (the “2025 Euro Notes”);
WHEREAS, amongst others the Issuer, Diebold Nixdorf Incorporated., Diebold Self- Service Solutions S.AR.L (the "Security Providers"), the Existing Notes Collateral Agent, U.S. Bank Trustees Limited and JPMorgan Chase Bank, N.A. entered into a first lien priority intercreditor agreement dated July 20, 2020 (the "First Lien Priority Intercreditor Agreement") in relation to, among others, the 2025 EUR Notes;
WHEREAS, the Indenture provides that, under certain circumstances, the Guaranteeing Subsidiaries shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiaries shall unconditionally Guarantee all of the Issuer’s Obligations under the 2025 Euro Notes and the Indenture on the terms and conditions set forth herein and under the Indenture;
WHEREAS, pursuant to Section 9.02 of the Indenture, the Issuer, the Guarantors and the Trustee may amend or supplement the Indenture and the 2025 Euro Notes with the consent of the Holders of a majority (or such higher amount as may be required) in aggregate principal amount of the then outstanding 2025 Euro Notes (collectively, the “Requisite Consents”);
WHEREAS, pursuant to Section 7.08 of the Indenture, Holders of a majority in aggregate principal amount of the then outstanding 2025 Euro Notes may remove the Notes Collateral Agent by so notifying the Trustee, the Notes Collateral Agent and the Issuer in writing; and the Issuer shall promptly appoint a successor Notes Collateral Agent if the Notes Collateral Agent is so removed;
WHEREAS, on October 20, 2022, the Company, certain of its subsidiaries (including the Issuer) and certain holders of the Company’s and Issuer’s existing indebtedness (the “Initial Consenting Holders”) entered into a Transaction Support Agreement, which was amended on
November 28, 2022 by Amendment No. 1 thereto and on December 20, 2022 by Amendment No. 2 thereto (together with all exhibits, annexes and schedules thereto, as so amended, the “Transaction Support Agreement”). Following the execution of the Transaction Support Agreement, additional eligible holders of the Company’s and Issuer’s existing indebtedness (together with the Initial Consenting Holders, the “Consenting Holders”) executed joinder agreements to become party to the Transaction Support Agreement, as permitted by its terms. Pursuant to the Transaction Support Agreement, the Consenting Holders holding 2025 Euro Notes have agreed, among other things, to tender all of their 2025 Euro Notes and deliver consents with respect to all of their 2025 Euro Notes in the Exchange Offer and the Consent Solicitation (each as defined below);
WHEREAS, on November 28, 2022, the Issuer distributed an Offering Memorandum and Consent Solicitation Statement (the “Offering Memorandum and Consent Solicitation Statement”) to certain Eligible Holders (as defined therein) to participate in, among other things,
(i) the offer to exchange the 2025 Euro Notes for new 9.000% Senior Secured Notes due 2025 being issued under the Indenture and with identical terms to the 2025 Euro Notes (after giving effect to the amendment and restatement of the Indenture herein), except for a different first issue date, first interest payment date and first date on which interest accrues and different Common Codes and ISIN numbers, as applicable (the “New 2025 Euro Notes”) (such exchange offer, the “Exchange Offer”), and (ii) the concurrent solicitation of consent from Eligible Holders to amend and restate the Indenture as set forth in this First Supplemental Indenture and replace the Notes Collateral Agent thereunder (the “Consent Solicitation”), subject to the terms and conditions set forth in the Indenture; and
WHEREAS, as of (or prior to) the date hereof, the Issuer has received and caused to be delivered to the Trustee evidence of receipt of the Requisite Consents from or on behalf of Holders to amend and restate the Indenture and replace the Notes Collateral Agent as set forth herein, in accordance with the Transaction Support Agreement and the Offering Memorandum and Consent Solicitation Statement.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1.Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.Amended and Restated Indenture. The Indenture is hereby amended and restated as set forth in Exhibit A hereto.
3.Guarantors. Each Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 12 thereof, in each case subject to the terms and conditions set forth in the Indenture.
4.Replacement of the Notes Collateral Agent. Requisite Consents have been obtained to remove the Existing Notes Collateral Agent under the Indenture and notice
thereof is hereby given to the Trustee, the Existing Notes Collateral Agent and the Issuer. The Issuer hereby appoints the New Notes Collateral Agent as the Notes Collateral Agent under the Indenture, and the New Notes Collateral Agent hereby accepts such appointment. The Existing Notes Collateral Agent hereby authorizes the New Notes Collateral Agent and the Issuer to file such instruments and documents and take such actions which may be necessary in order to assign and perfect the security interest granted in favor of the Existing Notes Collateral Agent under the Collateral Documents to and in favor of the New Notes Collateral Agent. The Existing Notes Collateral Agent hereby transfers and assigns the Additional First Lien Priority Parallel Debt Obligations (as defined in the First Lien Priority Intercreditor Agreement) to the New Notes Collateral Agent.
5.Transfer of Dutch First Lien Priority Security Documents. The Existing Notes Collateral Agent hereby transfers the contractual relationship and all rights and obligations under each First Lien Priority Security Document (as defined in the First Lien Priority Intercreditor Agreement) governed by Dutch law, including but not limited to ancillary rights and any rights attached thereto in accordance with the provisions of the Indenture, the First Lien Priority Intercreditor Agreement and the relevant Dutch First Lien Priority Security Agreement, to the New Notes Collateral Agent by way of transfer of contract (contractsoverneming) and the New Notes Collateral Agent hereby accepts the transfer of contract. Each of the Security Providers hereby accepts and acknowledges, and to the extent necessary provides its cooperation (medewerking) to such transfer of contractual relationship and rights and obligations.
6.Appointment of the New Notes Collateral Agent. Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder),
(i) pursuant to Article 2414-bis, third paragraph, of the Italian Civil Code, to the extent applicable, shall be deemed to have agreed and acknowledged the appointment of GLAS Americas LLC as the New Notes Collateral Agent and accepts and is bound by the appointment of the New Notes Collateral Agent, to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil Code, to the extent applicable, and, in any event, as mandatario con rappresentanza also pursuant to articles 1704 and 1723, second paragraph of the Italian Civil Code, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, and (ii) consented and agreed to the terms of any collateral document (including, without limitation, the provisions providing for foreclosure and release of any collateral and authorising the New Notes Collateral Agent to enter into any collateral document on its behalf) as the same may be in effect or may be amended from time to time in accordance with its terms and authorises and directs the New Notes Collateral Agent to enter into any collateral document and to perform its obligations and exercise its rights thereunder in accordance therewith.
7.Release of Liens. Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder) and the New Notes Collateral Agent, on behalf of itself and the other Secured Parties, without recourse or warranty, express or implied by the New Notes Collateral Agent, hereby agrees that, effective upon the Amendment and Restatement Operative Date (as defined below), all Liens held by the New Notes Collateral Agent on (i) that certain intercompany claim owed by Diebold Germany to the Company (the amount of which, as of the Issue Date, is approximately
€656,000,000) and (ii) that certain intercompany claim owed by Diebold Germany to the Issuer (the amount of which, as of the Issue Date, is approximately €343,000,000) arising under the Indenture or any Notes Document shall be terminated, irrevocably released and of no further force or effect, automatically and without the need for any further action (provided that the New Notes Collateral Agent agrees, at the Issuer’s expense, to execute and deliver or otherwise file any additional documents as the Issuer shall reasonably request from time to time, in form and substance reasonably satisfactory to the New Notes Collateral Agent, to evidence such release).
8.Intercreditor Agreement. The New Notes Collateral Agent is hereby irrevocably authorized and directed to enter into an agreement to terminate (in part) that certain First Lien Priority Intercreditor Agreement, dated as of July 20, 2020, among, inter alios, the Company, the Issuer, Diebold Self-Service Solutions S.A R.L, JPMorgan Chase Bank, N.A., the Trustee and the Existing Notes Collateral Agent.
9.Effectiveness. This First Supplemental Indenture will become effective immediately upon its execution and delivery by the parties hereto; provided, however, that the provisions of Sections 2 and 3 hereof shall not become operative until the settlement date of the Exchange Offer (the “Amendment and Restatement Operative Date”); provided, further, that the provisions of Sections 2 and 3 hereof shall become immediately operative upon the Amendment and Restatement Operative Date without further action by or notice to any Person.
10.Reference to and Effect on the Indenture. Except as otherwise provided in Section 5, on and after the effective date of this First Supplemental Indenture, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as amended and restated by this First Supplemental Indenture unless the context otherwise requires, and every Holder heretofore or hereafter authenticated and delivered shall be bound hereby.
11.Construction. Except as otherwise expressly provided or unless the context otherwise requires, the rules of construction set forth in Section 1.03 of the Indenture shall apply to this First Supplemental Indenture mutatis mutandis.
12.Governing Law. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE, EXCEPT FOR SECTION 5 (TRANSFER AND ASSIGNMENT DUTCH FIRST LIEN PRIORITY SECURITY DOCUMENTS) WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. SECTION 5 OF THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY THE LAWS OF THE NETHERLANDS.
13.Waiver of Jury Trial. EACH OF THE ISSUER, THE COMPANY, THE GUARANTORS, THE GUARANTEEING SUBSIDIARIES, THE TRUSTEE, THE EXISTING NOTES COLLATERAL AGENT AND THE NEW NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE INDENTURE, THE 2025 EURO NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
14.Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.
15.Counterparts. The parties may sign any number of copies of this First Supplemental Indenture. Each signed copy shall be deemed an original, but all of them together represent the same agreement. Delivery of an executed counterpart of a signature page to this First Supplemental Indenture by facsimile, email or other electronic means shall be effective as delivery of a manually executed counterpart of this First Supplemental Indenture.
16.Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
17.The Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent. The Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals and statements contained herein, all of which recitals are made solely by the Issuer, the Company, the Guarantors and the Guaranteeing Subsidiaries, and the Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent assume no responsibility for their correctness. It is understood and agreed that the New Notes Collateral Agent is entering into this First Supplemental Indenture not in its individual capacity but solely in its capacity as Notes Collateral Agent under the Indenture (as amended and restated pursuant to this First Supplemental Indenture). All rights, protections, indemnities and benefits granted to the Notes Collateral Agent in the Indenture (as amended and restated pursuant to this First Supplemental Indenture) as well as any Collateral Documents (x) are hereby incorporated as applying to the New Notes Collateral Agent as if fully set forth in this First Supplemental Indenture and (y) shall apply with respect to the appointment of the New Notes Collateral Agent and the execution and delivery of any instruments and agreements, and all actions taken or omitted, by the New Notes Collateral Agent pursuant to Section 4 hereof. The Existing Notes Collateral Agent, the Company and the Guaranteeing Subsidiaries expressly agree and acknowledge that the New Notes Collateral Agent is not assuming any liability, under or related to the Supplemental Indenture, the Indenture or the Collateral Documents prior to the Amendment and Restatement Operative Date, or for any and all claims under or related to the Supplemental Indenture, the Indenture or the Collateral Documents that may have arisen or accrued prior to the Amendment and Restatement Operative Date. The New Notes Collateral Agent shall be deemed hereby to have complied with Section 7.10(a) of the Indenture.
18.Benefits Acknowledged. Each of the Issuer, the Company, the Guarantors and the Guaranteeing Subsidiaries acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this First Supplemental Indenture and that the agreements made by it pursuant to this First Supplemental Indenture are knowingly made in contemplation of such benefits.
19.Successors. All agreements of each of the Issuer, the Company, the Guarantors, the Guaranteeing Subsidiaries, the Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent in this First Supplemental Indenture shall bind its successors, except as otherwise provided in the Indenture. All agreements of the Trustee, the Existing Notes Collateral Agent and the New Notes Collateral Agent in this First Supplemental Indenture shall bind their successors.
20.Ratification of Indenture; First Supplemental Indenture Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and each note issued thereunder heretofore or hereafter authenticated and delivered shall be bound hereby.
[Signature Pages Follow]
| | | | | |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
DIEBOLD NIXDORF, INCORPORATED |
By: |
/s/ Jeffrey Rutherford |
| Name: Jeffrey Rutherford |
| Title: Executive Vice President and Chief Financial Officer |
| | | | | |
DIEBOLD GLOBAL FINANCE CORPORATION |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD SST HOLDING COMPANY, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
GRIFFIN TECHNOLOGY INCORPORATED |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Vice President and Secretary |
| | | | | |
DIEBOLD SELF-SERVICE SYSTEMS |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
By: |
/s/ James Barna |
| Name: James Barna |
| Title: Vice President and Treasurer |
| | | | | |
DIEBOLD NIXDORF CANADA, LIMITED |
By: |
/s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| | | | | |
DIEBOLD CANADA HOLDING COMPANY INC. |
By: |
/s/ Jonathan Leiken |
| Name: Jonathan Leiken |
| Title: Vice President and Secretary |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF B.V. |
By: |
/s/ Helena Mueller |
| Name: Helena Mueller |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF GLOBAL HOLDING B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF B.V. |
By: |
/s/ Elizabeth Radigan |
| Name: Elizabeth Radigan |
| Title: Authorized Signatory |
| | | | | |
DIEBOLD NIXDORF SOFTWARE PARTNER B.V. |
By: |
/s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SOFTWARE C.V. |
By Diebold Nixdorf Software Partner B.V. as General Partner |
| By: | /s/ Michael Engel |
| Name: Michael Engel |
| Title: Managing Director |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. |
By: |
/s/ Hendrik Schouten |
| Name: Hendrik Schouten |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF S.A.S. |
By: |
/s/ Hervé Grelet |
| Name: Hervé Grelet |
| Title: duly authorized |
| | | | | |
DIEBOLD NIXDORF HOLDING GERMANY GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
WINCOR NIXDORF INTERNATIONAL GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SYSTEMS GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF DEUTSCHLAND GMBH |
By: |
/s/ Roland Sorke |
| Name: Roland Sorke |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF LOGISTICS GMBH |
By: |
/s/ Christina Wieber |
| Name: Christina Wieber |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH |
By: |
/s/ Christina Wieber |
| Name: Christina Wieber |
| Title: Managing Director |
WINCOR NIXDORF FACILITY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG |
By Diebold Nixdorf Security GmbH as General Partner |
| By: | /s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH |
By: |
/s/ Jörg Kleinschmidt |
| Name: Jörg Kleinschmidt |
| Title: Managing Director |
| | | | | |
IP MANAGEMENT GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH |
By: |
/s/ Olaf Heyden |
| Name: Olaf Heyden |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF SECURITY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF OPERATIONS GMBH |
By: |
/s/ Michael Schütt |
| Name: Michael Schütt |
| Title: Managing Director |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF FINANCE GERMANY GMBH |
By: |
/s/ Jörn Förster |
| Name: Jörn Förster |
| Title: Managing Director |
| | | | | | | | |
DIEBOLD NIXDORF S.R.L. |
By: |
/s/ Jonathan Leiken |
Name: Jonathan Leiken |
Title: Authorized Signatory |
Place of Execution: | United States of America |
| | | | | |
DIEBOLD NIXDORF SP. Z.O.O. |
By: |
/s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF BPO SP. Z.O.O. |
By: |
/s/ Adrian Gawrys |
| Name: Adrian Gawrys |
| Title: Managing Director |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
DIEBOLD NIXDORF S.L. |
By: |
/s/ D. Luis Carlos Rodríguez Argüelles |
| Name: D. Luis Carlos Rodríguez Argüelles |
| Title: Managing Director |
| | | | | |
DIEBOLD NIXDORF AB |
By: |
/s/ Rene Lauxtermann |
| Name: Rene Lauxtermann |
| Title: Director |
| | | | | |
DIEBOLD NIXDORF (UK) LIMITED |
By: |
/s/ Paul George Young |
| Name: Paul George Young |
| Title: Director |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
| | | | | |
TRUSTEE, NOTES COLLATERAL AGENT, & PAYING AGENT, TRANSFER AGENT, AND REGISTRAR: U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
| By: | /s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Vice President |
| | | | | |
U.S. BANK TRUSTEES LIMITED, as Notes Collateral Agent |
| By: | /s/ Michael Leong |
| Name: Michael Leong |
| Title: Authorised Signatory |
| | | | | |
ELAVON FINANCIAL SERVICES DAC, as Paying Agent, Transfer Agent and Registrar |
| By: | /s/ Michael Leong |
| Name: Michael Leong |
| Title: Authorised Signatory |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
GLAS AMERICAS LLC, as Notes Collateral Agent
| | | | | |
| By: | /s/ Jeffrey Schoenfeld |
| Name: Jeffrey Schoenfeld |
| Title: Vice President |
| | |
[Signature Page to 2025 EUR Notes First Supplemental Indenture] |
SCHEDULE I
List of Guaranteeing Subsidiaries
Diebold Nixdorf Technology Finance, LLC Diebold Nixdorf Canada Limited
Diebold Canada Holding Company Inc. Diebold Nixdorf BV
Diebold Nixdorf B.V.
Diebold Nixdorf Global Holding B.V. Diebold Nixdorf Software Partner B.V. Diebold Nixdorf Software C.V. Diebold Nixdorf Global Solutions B.V.
Diebold Nixdorf Holding Germany GmbH Wincor Nixdorf International GmbH Diebold Nixdorf Systems GmbH
Diebold Nixdorf Deutschland GmbH Diebold Nixdorf Logistics GmbH Diebold Nixdorf Global Logistics GmbH Wincor Nixdorf Facility GmbH
Diebold Nixdorf Real Estate GmbH & Co. KG
Diebold Nixdorf Business Administration Center GmbH IP Management GmbH
Diebold Nixdorf Vermögensverwaltungs GmbH Diebold Nixdorf Security GmbH
Diebold Nixdorf Operations GmbH Diebold Nixdorf Finance Germany GmbH Diebold Nixdorf S.r.l.
Diebold Nixdorf sp. z o.o. Diebold Nixdorf BPO sp. z o.o. Diebold Nixdorf S.L.
Diebold Nixdorf AB
Diebold Nixdorf (UK) Limited
EXHIBIT A
Amended and Restated Indenture
[see attached]
Execution Version
AMENDED AND RESTATED SENIOR SECURED NOTES INDENTURE
Dated as of December 29, 2022 Among
DIEBOLD NIXDORF DUTCH HOLDING B.V.
as Issuer
DIEBOLD NIXDORF, INCORPORATED
as Guarantor
THE SUBSIDIARY GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO ELAVON FINANCIAL SERVICES DAC,
as Paying Agent, Transfer Agent and Registrar
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee and
GLAS AMERICAS LLC,
as Notes Collateral Agent
9.000% SENIOR SECURED NOTES DUE 2025
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Definitions 1
Section 1.02 Other Definitions 52
Section 1.03 Rules of Construction. 54
Section 1.04 Acts of Holders. 54
Section 1.05 Quebec Interpretive Provisions 56
Section 1.06 French Terms. 57
Section 1.07 Spanish Terms and Definitions 58
Section 1.08 Dutch Terms 59
Section 1.09 Swedish Terms. 60
ARTICLE 2 THE NOTES 61
Section 2.01 Form and Dating; Terms 61
Section 2.02 Execution and Authentication. 62
Section 2.03 Registrar and Paying Agent 62
Section 2.04 Paying Agent to Hold Money. 63
Section 2.05 Holder Lists 63
Section 2.06 Transfer and Exchange 63
Section 2.07 Replacement Notes. 64
Section 2.08 Outstanding Notes 65
Section 2.09 Treasury Notes 65
Section 2.10 Temporary Notes 65
Section 2.11 Cancellation. 66
Section 2.12 Defaulted Interest. 66
Section 2.13 Common Code and ISIN Numbers 66
Section 2.14 Currency. 67
Section 2.15 Agents 67
Section 2.16 Italian Usury Law 67
ARTICLE 3 REDEMPTION 68
Section 3.01 Notices to Trustee. 68
Section 3.02 Selection of Notes to Be Redeemed or Purchased 68
Section 3.03 Notice of Redemption. 69
Section 3.04 Effect of Notice of Redemption. 70
Section 3.05 Deposit of Redemption or Purchase Price 70
Section 3.06 Notes Redeemed or Purchased in Part 70
Section 3.07 Optional Redemption. 71
Section 3.08 Mandatory Redemption. 71
Section 3.09 Tax Redemption 71
Section 3.10 Offers to Repurchase by Application of Excess Proceeds. 72
ARTICLE 4 COVENANTS 75
Section 4.01 Payment of Notes. 75
Section 4.02 Maintenance of Office or Agency 75
Section 4.03 Taxes. 75
Section 4.04 Stay, Extension and Usury Laws 76
Section 4.05 Corporate Existence 76
Section 4.06 Reports and Other Information. 76
Section 4.07 Compliance Certificate. 77
Section 4.08 Limitation on Restricted Payments. 78
Section 4.09 Limitation on Indebtedness 82
Section 4.10 Limitation on Liens 86
Section 4.11 Future Guarantors 86
Section 4.12 Limitation on Restrictions on Distribution From Subsidiaries 88
Section 4.13 [Reserved] 90
Section 4.14 Transactions with Affiliates 90
Section 4.15 Offer to Repurchase Upon Change of Control 91
Section 4.16 Asset Dispositions. 94
Section 4.17 Effectiveness of Covenants 97
Section 4.18 Further Covenants. 98
Section 4.19 Additional Amounts 98
Section 4.20 Limitation on Activities of the Issuer 101
Section 4.21 Collateral and Guarantee Requirements. 101
ARTICLE 5 SUCCESSORS 102
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets. 102
ARTICLE 6 DEFAULTS AND REMEDIES 104
Section 6.01 Events of Default 104
Section 6.02 Acceleration 107
Section 6.03 Other Remedies 107
Section 6.04 Waiver of Past Defaults 108
Section 6.05 Control by Majority 108
Section 6.06 Limitation on Suits 108
Section 6.07 Rights of Holders to Receive Payment 109
Section 6.08 Collection Suit by Trustee 109
Section 6.09 Restoration of Rights and Remedies 109
Section 6.10 Rights and Remedies Cumulative 109
Section 6.11 Delay or Omission Not Waiver 110
Section 6.12 Trustee May File Proofs of Claim 110
Section 6.13 Priorities 110
Section 6.14 Undertaking for Costs 111
ARTICLE 7 TRUSTEE AND COLLATERAL AGENT 111
Section 7.01 Duties of Trustee and Notes Collateral Agent 111
Section 7.02 Rights of Trustee and Notes Collateral Agent 112
Section 7.03 Individual Rights of Trustee and Notes Collateral Agent 114
Section 7.04 Disclaimer 115
Section 7.05 Notice of Defaults. 115
Section 7.06 [Reserved] 115
Section 7.07 Compensation and Indemnity. 115
Section 7.08 Appointment of the Notes Collateral Agent. 116
Section 7.09 Replacement of Trustee or Notes Collateral Agent 118
Section 7.10 Successor by Merger, etc. 119
Section 7.11 Eligibility; Disqualification 119
Section 7.12 Collateral Documents; Intercreditor Agreements 119
ARTICLE 8 LEGAL DEFEASANCE AND COVENANT DEFEASANCE 120
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance 120
Section 8.02 Legal Defeasance and Discharge 120
Section 8.03 Covenant Defeasance 121
Section 8.04 Conditions to Legal or Covenant Defeasance 121
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other
Miscellaneous Provisions 123
Section 8.06 Repayment to the Issuer 123
Section 8.07 Reinstatement 123
ARTICLE 9 AMENDMENT, SUPPLEMENT AND WAIVER 124
Section 9.01 Without Consent of Holders 124
Section 9.02 With Consent of Holders 126
Section 9.03 [Reserved] 128
Section 9.04 Revocation and Effect of Consents 128
Section 9.05 Notation on or Exchange of Notes 128
Section 9.06 Trustee and Notes Collateral Agent to Sign Amendments, etc 129
Section 9.07 Payments for Consent 129
ARTICLE 10 GUARANTEES 130
Section 10.01 Guarantee. 130
Section 10.02 Limitation on Guarantor Liability 131
Section 10.03 Execution and Delivery 138
Section 10.04 Subrogation 138
Section 10.05 Benefits Acknowledged 138
Section 10.06 Release of Note Guarantees 138
Section 10.07 Spanish Law Particularities. 139
ARTICLE 11 COLLATERAL AND SECURITY 140
Section 11.01 Collateral 140
Section 11.02 Maintenance of Collateral 142
Section 11.03 Impairment of Collateral 142
Section 11.04 Further Assurances 142
Section 11.05 After-Acquired Property 143
Section 11.06 Real Estate Mortgages and Filings 144
Section 11.07 Release of Liens on the Collateral 145
Section 11.08 Information Regarding Collateral 147
Section 11.09 Collateral Documents and Intercreditor Agreements 147
Section 11.10 Suits to Protect the Collateral. 148
Section 11.11 Authorization of Receipt of Funds by the Trustee Under the Collateral
Documents 148
Section 11.12 Purchaser Protected 148
Section 11.13 Powers Exercisable by Receiver or Trustee 148
Section 11.14 Spanish Particularities in Relation to any Spanish Collateral Documents. 148
ARTICLE 12 SATISFACTION AND DISCHARGE 149
Section 12.01 Satisfaction and Discharge 149
Section 12.02 Application of Trust Money 150
ARTICLE 13 MISCELLANEOUS 151
Section 13.01 [Reserved] 151
Section 13.02 Notices. 151
Section 13.03 [Reserved] 153
Section 13.04 Certificate and Opinion as to Conditions Precedent 153
Section 13.05 Statements Required in Certificate or Opinion 153
Section 13.06 Rules by Trustee and Agents. 154
Section 13.07 No Personal Liability of Directors, Officers, Employees, Members, Partners
and Shareholders 154
Section 13.08 Governing Law 154
Section 13.09 Consent to Jurisdiction and Service of Process; Waiver of Jury Trial 154
Section 13.10 Force Majeure. 154
Section 13.11 No Adverse Interpretation of Other Agreements 155
Section 13.12 Successors. 155
Section 13.13 Severability. 155
Section 13.14 Counterpart Originals 155
Section 13.15 Table of Contents, Headings, etc. 155
Section 13.16 PDF Delivery of Signature Pages. 155
Section 13.17 U.S.A. PATRIOT Act 155
Section 13.18 Payments Due on Non-Business Days. 156
Section 13.19 Spanish Provisions Relating to Executive Proceedings. 156
Section 13.20 Parallel Debt; Parallel Debt Owed to the Notes Collateral Agent 157
Section 13.21 Judgment Currency. 159
Appendix A Provisions Relating to Notes Appendix B Agreed Security Principles Appendix C Foreign Collateral Documents Appendix D Post-Closing Matters
Exhibit A Form of Note
Exhibit B Form of Institutional Accredited Investor Transferee Letter of Representation Exhibit C Form of Supplemental Indenture to Be Delivered by Subsequent Guarantors
INDENTURE, dated as of December 29, 2022, among Diebold Nixdorf Dutch Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Issuer”), Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Subsidiary Guarantors listed on the signature pages hereto, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S. Bank Trust Company, National Association, a national banking association, as trustee (the “Trustee”) and GLAS Americas LLC, as notes collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, on July 20, 2020, the Issuer, the Company (as guarantor), certain Subsidiaries of the Company (as guarantors), Elavon Financial Services DAC, as Paying Agent, Transfer Agent, and Registrar, the Trustee and U.S. Bank Trustees limited, as notes collateral agent, entered into an indenture (as amended or supplemented, the “Original Indenture,” and, as amended, supplemented, restated or amended and restated to the date hereof, the “Indenture”) to establish the form and terms, and to provide for the issuance, of €350,000,000 in aggregate principal amount of 9.000% Senior Secured Notes due 2025 (the “Existing Notes”);
WHEREAS, pursuant to the terms of the Original Indenture, the Original Indenture and the Existing Notes are amended and restated as set forth by the terms hereof;
WHEREAS, the Issuer has duly authorized the creation of and issue of €355,950,000 aggregate principal amount of Additional Notes pursuant to, and as defined in, the Original Indenture (which Additional Notes are herein referred to as the “Exchange Notes”) to holders of Existing Notes participating in the offer to exchange, among others, Existing Notes for Exchange Notes pursuant to the terms and conditions set forth in the Offering Memorandum (as defined below); and
WHEREAS, the Guarantors have duly authorized the execution and delivery of this
Indenture;
NOW, THEREFORE, the Issuer, the Guarantors, the Trustee and the Notes Collateral
Agent agree as follows for the benefit of each other and for the equal and ratable benefit of the Holders of the Notes.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
“2023 Credit Facility” means that certain credit agreement, dated as of November 23, 2015, among the Company, the guarantors parties thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“2023 Credit Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the 2023 Credit Facility, or any successor representative acting in such capacity.
“2023 Credit Facility Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the collateral agent under the 2023 Credit Facility, or any successor representative acting in such capacity.
“2024 Notes” means the Company’s 8.5% Senior Notes due 2024 issued pursuant to the 2024 Notes Indenture.
“2024 Notes Indenture” means that certain indenture, dated as of April 19, 2016, among the Company, as issuer, the subsidiary guarantors party thereto from time to time, and the 2024 Trustee, as amended or supplemented from time to time, relating to the Company’s 8.5% Senior Notes due 2024.
“2024 Trustee” means U.S. Bank Trust Company, National Association.
“2025 Credit Facility” means that certain credit agreement, dated as of the Issue Date, among the Company, the guarantors parties thereto, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“2025 Credit Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the 2025 Credit Facility, or any successor representative acting in such capacity.
“2025 Credit Facility Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Credit Facility, or any successor representative acting in such capacity.
“2025 Credit Facility Obligations” means the “Obligations” as defined in the 2025 Credit
Facility.
“2025 Notes” means the Notes and the 2025 U.S. Notes.
“2025 Notes Collateral Agents” means the Notes Collateral Agent and the 2025 U.S.
Notes Collateral Agent.
“2025 Notes Indentures” means this Indenture and the 2025 U.S. Notes Indenture. “2025 Notes Trustees” means the Trustee and the 2025 U.S. Notes Trustee.
“2025 U.S. Notes” means the Company’s 9.375% Senior Secured Notes due 2025 issued pursuant to the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 U.S. Notes Indenture, or any successor representative acting in such capacity.
“2025 U.S. Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Company, as issuer, the subsidiary guarantors from time to time party thereto, the 2025 U.S. Notes Trustee and the 2025 U.S. Notes Collateral Agent, as amended, amended and restated or supplemented from time to time, relating to the Company’s 9.375% Notes due 2025.
“2025 U.S. Notes Trustee” means U.S. Bank Trust Company, National Association until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 U.S. Notes Indenture and thereafter means the successor serving thereunder.
“ABL Agreement” means the collective reference to (a) the ABL Facility, (b) any Additional ABL Agreement and (c) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been Incurred to extend, replace, refinance or refund in whole or in part the Indebtedness and other obligations outstanding under the ABL Facility (regardless of whether such replacement, refunding or refinancing is a “working capital” facility, asset- based facility or otherwise), any Additional ABL Agreement or any other agreement or instrument referred to in this clause (c) unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Agreement hereunder (a “Replacement ABL Agreement”). Any reference to the ABL Agreement hereunder shall be deemed a reference to any ABL Agreement then extant.
“ABL Collateral Agent” means (a) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party other than an ABL Loan Party incorporated under the laws of a Specified Jurisdiction (other than Canada), JPMorgan Chase Bank, N.A. (together with its successors and assigns), as collateral agent for the ABL Secured Parties, (b) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party incorporated under the laws of a Specified Jurisdiction (other than Canada), GLAS Americas LLC (together with its successors and assigns) as collateral agent for the ABL Secured Parties and (c) in the case of any Replacement ABL Agreement or any other ABL Agreement, the Person identified as such in such agreement.
“ABL Creditors” means collectively, the “Lenders” and the “Secured Parties,” each as defined in the ABL Agreement or any Persons that are designated under the ABL Agreement as the “ABL Creditors” for purposes of the ABL Intercreditor Agreement.
“ABL Documents” means, collectively, the ABL Facility, the ABL Intercreditor Agreement and the indenture, credit agreement or other agreement governing other ABL Indebtedness and ABL Security Documents related to the foregoing.
“ABL Facility” means that credit agreement with respect to an asset-based revolving credit facility, to be dated on or around the Issue Date, among the Company, certain of its Subsidiaries, the ABL Facility Administrative Agent, the ABL Collateral Agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder), and including any related notes, Guarantees, collateral documents, instruments and agreements executed in connection therewith, and, in each case, as amended, restated, modified or refinanced from time to time, and (if designated by the Company) as replaced (whether or not upon termination, and whether with the original lenders or otherwise), amended, restated, modified or refinanced from time to time, including (if designated by the Company) by any agreement or indenture or commercial paper facility with banks or other institutional lenders or investors extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such agreement or agreements or indenture or indentures or any successor or replacement agreement or agreements or indenture or indentures increasing the amount loaned or issued thereunder expressly permitted by Section 4.09 or adding Subsidiaries as additional borrowers or guarantors thereunder and whether by the same or any other agent, lender or group of lenders.
“ABL Facility Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as the administrative agent under the ABL Facility, or any successor representative acting in such capacity.
“ABL Indebtedness” means (a) Indebtedness (including letters of credit and reimbursement obligations with respect thereto) and other obligations Incurred by the ABL Loan Parties
under or in respect of the ABL Facility and/or (b) Guarantees by any Subsidiary in respect of any of the obligations described in the foregoing clause (a).
“ABL Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the ABL Collateral Agent, the Superpriority Credit Facility Collateral Agent, the 2023 Credit Facility Collateral Agent, the 2025 Credit Facility Collateral Agent, the 2025 Notes Collateral Agents, the New 2L Notes Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“ABL Loan Parties” means, collectively, the borrowers and guarantors from time to time party to the ABL Documents.
“ABL Non-Priority Collateral” means all Collateral that is not ABL Priority Collateral. “ABL Obligations” means (a) all principal of and interest (including, without limitation
any post-petition interest) and premium (if any) on all loans made pursuant to the ABL Agreement or any ABL DIP Financing (as defined in the ABL Intercreditor Agreement) by the ABL Creditors, (b) all reimbursement obligations (if any) and interest thereon (including without limitation any post-petition interest) with respect to any letter of credit or similar instruments issued pursuant to the ABL Agreement,
(c) all Swap Obligations (as defined in the ABL Intercreditor Agreement), (d) all Banking Services Obligations (as defined in the ABL Intercreditor Agreement) and (e) all guarantee obligations, indemnities, fees, expenses (including, without limitation, all fees and disbursements of counsel to the ABL Representatives (as defined in the ABL Intercreditor Agreement) or any ABL Creditors) and other amounts payable from time to time pursuant to the ABL Documents, in each case whether or not allowed or allowable in an insolvency proceeding. To the extent any payment with respect to any ABL Obligation (whether by or on behalf of any ABL Loan Party, as proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Notes Secured Party (as defined in the ABL Agreement), receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Indenture and the rights and obligations of the ABL Secured Parties and the Notes Secured Parties (as defined in the ABL Agreement), be deemed to be reinstated and outstanding as if such payment had not occurred.
“ABL Priority Collateral” means, collectively the ABL Priority Domestic Collateral and the ABL Priority Foreign Collateral.
“ABL Priority Domestic Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which constitutes “ABL Priority Collateral” under the ABL Facility; provided, that any ABL Priority Domestic Collateral that is for any reason after the Issue Date no longer “Collateral” under the ABL Facility shall be deemed as of such date to be Non-ABL Domestic Released Collateral.
“ABL Priority Foreign Collateral” means that portion of the Collateral that is held by a Foreign Subsidiary of the Company and which constitutes “ABL Priority Collateral” under the ABL Facility; provided, that any ABL Priority Foreign Collateral that is for any reason after the Issue Date no longer “Collateral” under the ABL Facility shall be deemed as of such date to be Non-ABL Foreign Collateral.
“ABL Priority Secured Indebtedness” means (a) ABL Indebtedness secured pursuant to the ABL Security Documents by Liens on the ABL Priority Collateral, which Liens are senior in priority to the Liens on the ABL Priority Collateral securing the Non-ABL Secured Indebtedness pursuant to the
terms of the ABL Intercreditor Agreement or other intercreditor agreement that is substantially similar to such intercreditor agreement (regardless of any priority level among such Non-ABL Secured Indebtedness).
“ABL Secured Parties” means the ABL Collateral Agent, the ABL Facility Administrative Agent, the ABL Creditors and any other holders of the ABL Obligations.
“ABL Security Documents” means all security agreements, pledge agreements, control agreements, collateral assignments, Mortgages, deeds of trust, security deeds, deeds to secure debt, hypothecs, collateral agency agreements, debentures or other instruments, pledges, grants or transfers for security or agreements related thereto executed and delivered by the Company, any or any Guarantor creating or perfecting (or purporting to create or perfect) a Lien upon Collateral (including, without limitation, financing statements under the Uniform Commercial Code or the PPSA, as applicable) in favor of the ABL Collateral Agent, for the benefit of any of the holders of ABL Indebtedness, in each case, as amended, modified, restated, supplemented or replaced, in whole or in part, from time to time, in accordance with its terms and the applicable ABL Documents subject to the terms of the ABL Intercreditor Agreement, as applicable.
“Acquired Indebtedness” means, with respect to any specified Person, (1) Indebtedness of any Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary, (2) Indebtedness assumed in connection with the acquisition of assets from such Person, or (3) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person, in each case whether or not Incurred by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Indebtedness shall be deemed to have been Incurred, with respect to clause (1) of the preceding sentence, on the date such Person becomes a Subsidiary and, with respect to clauses (2) and (3) of the preceding sentence, on the date of consummation of such acquisition of assets.
“Additional ABL Agreement” means any agreement evidencing or governing the Incurrence of additional Indebtedness that is permitted to be secured by the Collateral securing any ABL Indebtedness on a pari passu basis with other ABL Indebtedness and treated as an ABL Agreement pursuant to the ABL Agreement and any agreement approved for designation as such by each ABL Collateral Agent and each Non-ABL Representative.
“Additional Notes” has the meaning given to such term in the Original Indenture. “Affiliate” of any specified Person means any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”) when used with respect to any Person means possession, directly or indirectly, of the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“After-Acquired Property” means property (other than Excluded Property) that is intended to be Collateral acquired by the Issuer, the Company or a Guarantor (including property of a Person that becomes a new Guarantor after the Issue Date) that is not automatically subject to a perfected security interest under the Collateral Documents.
“Agent” means any Registrar, Transfer Agent or Paying Agent. “Agreed Security Principles” has the meaning set forth in Appendix B.
“Asset Disposition” means any direct or indirect sale, lease (other than an operating lease entered into in the ordinary course of business), transfer, issuance or other disposition, or a series of related sales, leases (other than operating leases entered into in the ordinary course of business), transfers, issuances or dispositions that are part of a common plan, of shares of Capital Stock of a Subsidiary (other than directors’ qualifying shares or shares or interests required to be held by foreign nationals pursuant to local law), property or other assets (each referred to for the purposes of this definition as a “disposition”) by the Company or any of its Subsidiaries, including any disposition by means of a merger, amalgamation, consolidation or similar transaction.
Notwithstanding the preceding, the following items shall not be deemed to be Asset
Dispositions:
(1)dispositions of assets, including by means of a merger, amalgamation, consolidation or similar transaction, by (a) the Issuer or a Guarantor to the Company or by the Company, the Issuer or a Guarantor to the Issuer or a Guarantor or (b) a Guarantor, the Company or the Issuer to a Non-Guarantor Subsidiary, provided that all such dispositions under clause
(b) of this paragraph (excluding dispositions which are Permitted Investments or permitted pursuant to Section 4.08) (i) in the aggregate do not exceed $25.0 million (with the Fair Market Value of each such disposition being measured at the time made and without giving effect to subsequent changes in value) and (ii) are for cash consideration only; (2)the sale or other disposition of cash or Cash Equivalents in the ordinary course of business or in connection with cash management activities;
(3)a disposition of inventory or equipment in the ordinary course of business;
(4)dispositions of obsolete, damaged, worn out or surplus assets, in each in the ordinary course of business;
(5)the disposition of all or substantially all of the assets of the Company in a manner permitted pursuant to Section 5.01 or any disposition that constitutes a Change of Control pursuant to this Indenture; (6)an issuance of Capital Stock by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(7)for purposes of Section 4.16 only, the making of a Permitted Investment (other than a Permitted Investment to the extent such transaction results in the receipt of cash or Cash Equivalents by the Company or its Subsidiaries (but excluding any securities, notes or other obligations that are subsequently converted into cash)) or a disposition that is permitted pursuant to Section 4.08; (8)[reserved];
(9)[reserved];
(10)dispositions of assets in any single transaction or series of related transactions with an aggregate Fair Market Value equal to or less than $5.0 million, provided that in any fiscal year, the aggregate sum of dispositions under this clause (10) shall not exceed $15.0 million;
(11)the creation of a Permitted Lien and dispositions in connection with Permitted Liens;
(12)discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof and sales of accounts receivable in the ordinary course of business and at the request of the account debtor thereon to facilitate the processing and payment thereof, in each case exclusive of factoring or similar arrangements;
(13)the issuance by a Subsidiary of Disqualified Stock or Preferred Stock that is permitted by Section 4.09; (14)(i) the licensing or sublicensing of intellectual property or other general intangibles and licenses, leases or subleases of other property, in each case, in the ordinary course of business and (ii) the abandonment or allowance to lapse of intellectual property which, in the case of this clause (ii), in the good faith determination of the Company is not material to the Company and its Subsidiaries, taken as a whole;
(15)foreclosure on assets;
(16)dispositions resulting from (i) any taking, expropriation or condemnation of any property of the Company or any Subsidiary by any governmental authority or (ii) any casualty;
(17)[reserved];
(18)sales and exchanges of assets in connection with the concurrent purchase of assets useful in a Similar Business to the extent that (i) the assets received by the Company or its Subsidiaries are of equivalent or greater Fair Market Value than the assets transferred and, (ii) if a Subsidiary transfers any such assets without receiving assets in exchange as set forth in clause (i), such Subsidiary must receive cash consideration equal to or greater than the Fair Market Value of the transferred assets;
(19)[reserved];
(20)any surrender or waiver of contract rights or the settlement, release or surrender of any contract, tort or other litigation claims;
(21)dispositions of machinery, equipment or other fixed assets to the extent that (i) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 180 days, (ii) such assets are exchanged within 180 days for machinery, equipment or other fixed assets having a Fair Market Value equal to or greater than the assets being traded in or (iii) the proceeds of such disposition are applied to the purchase price of replacement assets within 180 days;
(22)the unwinding of any Hedging Obligations;
(23)dispositions of Common Stock of the Company held by any Subsidiary in connection with any acquisition made by the Company or any Subsidiary;
(24)dispositions in connection with the China JV Restructuring;
(25)sales and/or transfers of joint venture equity interests and assets pursuant to the terms of the China Joint Venture; and
(26)sales and/or transfers of joint venture equity interests and assets pursuant to the terms of the Wincor Joint Venture.
“Authorized Representative” means in the case of (i) the Superpriority Credit Facility or the holders of Obligations thereunder, the Superpriority Credit Facility Administrative Agent, (ii) the ABL Facility or the holders of Obligations thereunder, the ABL Facility Administrative Agent, (iii) the 2025 Credit Facility or the holders of Obligations thereunder, the 2025 Credit Facility Administrative Agent, (iv) the 2023 Credit Facility or the holders of Obligations thereunder, the 2023 Credit Facility Administrative Agent, (v) the Notes or the Holders thereof, the Trustee, (vi) the 2025 U.S. Notes or the holders thereof, the 2025 U.S. Notes Trustee, and (vii) of the New 2L Notes or the holders thereof, the New 2L Notes Trustee and (viii) in the case of any series of additional Secured Indebtedness or the holders thereof that become subject to any Intercreditor Agreement, the Authorized Representative named for such series in the applicable joinder agreement.
“Average Life” means, as of the date of determination, with respect to any Indebtedness or Preferred Stock, the quotient obtained by dividing:
(1)the sum of the products obtained by multiplying (a) the amount of each successive scheduled principal payment of such Indebtedness or redemption or similar payment with respect to such Preferred Stock by (b) the number of years (calculated to the nearest one- twelfth) from the date of determination to the date of such payment; by
(2)the sum of the amounts of all such payments.
“Bankruptcy Laws” shall mean, as applicable, (a) the Bankruptcy Code and (b) and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement involving a compromise of claims of any class of its creditors), the UK Insolvency Act 1986, the German Insolvency Code (Insolvenzordnung), the Italian Bankruptcy Law or Italian Crisis and Insolvency Code, the Dutch Bankruptcy Act (Faillissementswet), Book XX of the Belgian Economic Law Code (Wetboek Economisch Recht/Code de droit économique), the Spanish Insolvency Law, the Swedish Reorganisation Act (Sw. lag (2022:964) om företagsrekonstruktion), the Swedish Bankruptcy Act (Sw. Konkurslag (1987:672)), the Polish Insolvency Law dated 28 February 2003 (Prawo upadłościowe), the Polish Restructuring Law dated 15 May 2015 (Prawo restrukturyzacyjne) the Council of the European Union Regulation 2015/848 on insolvency proceedings, the provisions of Book VI (Livre Sixième) of the French Commercial Code and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, restructuring, reorganization, administration, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect (including any applicable corporations or companies legislation to the extent the relief sought under such legislation relates to or involves the compromise, settlement, adjustment, restructuring or arrangement of debt).
“Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations of 23 March 2019, as amended from time to time.
“Belgian Collateral Agreements” means the collateral agreements governed by Belgian law set forth on Appendix C hereof.
“Belgian Collateral Documents” means the Belgian Collateral Agreements and each security agreement or other instrument or document, as applicable, governed by Belgian law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations;
provided that each Belgian Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Belgian Guarantor” means a Guarantor organized or incorporated under the laws of
Belgium.
“beneficial ownership” has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, and “beneficial owner” has a corresponding meaning.
“Bi-lateral LC/WC Agreement” means an agreement between the Company and/or any of its Subsidiaries and a financial institution providing for foreign and/or domestic revolving credit facilities and/or the issuance of letters of credit, bank guarantees and/or similar obligations, which agreement has been designated in writing as a Bi-lateral LC/WC Agreement pursuant to an Officer’s Certificate delivered to the Trustee setting forth the maximum principal amount available or permitted to be Incurred under such agreement. The Company may rescind such designation or decrease or increase the maximum principal amount available or permitted to be Incurred under any such agreement pursuant to an Officer’s Certificate delivered to the Trustee. Liens on the collateral in respect of any credit facility securing obligations in respect of any Bi-lateral LC/WC Agreements shall be required to be secured pursuant to clauses (34) and/or (35) of the definition of “Permitted Liens.”
“Board of Directors” means:
(1)with respect to a corporation, the Board of Directors of the corporation or (other than for purposes of determining Change of Control) any duly authorized committee of the Board of Directors;
(2)with respect to a partnership, the Board of Directors of the general partner of the partnership; and
(3)with respect to any other Person, the board or committee of such Person serving a similar function.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York, London, United Kingdom or Amsterdam, the Netherlands are authorized or required by law to close.
“Canadian Collateral Agreement” means, collectively, the Canadian security agreement among the Note Parties party thereto and the Notes Collateral Agent, in form and substance reasonably satisfactory to the Notes Collateral Agent, and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Canadian law in connection with this Indenture and the Canadian Collateral and Guarantee Requirement to secure any of the Obligations.
“Canadian Collateral and Guarantee Requirement” means, at any time and solely with respect to each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Trustee and the Notes Collateral Agent shall have received from (i) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the applicable supplemental indenture hereto duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplemental indenture hereto duly
executed and delivered on behalf of such Person, (ii) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Canadian Note Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Foreign Note Documents executed and delivered after the Issue Date, documents and, to the extent reasonably requested by the Trustee or the Notes Collateral Agent;
(b)all outstanding Capital Stock of any Subsidiary of the Company (other than any Capital Stock constituting Excluded Property) owned by or on behalf of any Canadian Note Party shall have been pledged pursuant to the Canadian Collateral Agreement and the Notes Collateral Agent shall have received certificates or other instruments representing all such Capital Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Issuer, the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Canadian Note Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Canadian Collateral Agreement and the Notes Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including PPSA financing statements, Control Agreements and intellectual property security agreements, required by the Canadian Collateral Agreement or Requirements of Law and reasonably requested by the Trustee, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Canadian Collateral Agreement and perfect such Liens to the extent required by, and with the priority required by, the Canadian Collateral Agreement and the other provisions of the term “Canadian Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Trustee in proper form for filing, registration or recording;
(e)the Notes Collateral Agent shall have received as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Notes Collateral Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Notes Collateral Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Notes Collateral Agent, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 4.10, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Trustee may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap”
indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Notes Collateral Agent of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer) and (vi) such legal opinions as the Trustee or Notes Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Canadian Note Party on the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree), (ii) with respect to any Required Account established by a Canadian Note Party after the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Trustee shall reasonably agree), and
(iii) with respect to any Required Account acquired by a Canadian Note Party after the Issue Date, each Canadian Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Trustee shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Trustee. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account maintained by a Canadian Note Party so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement, (ii) the Lien thereon securing the obligations under the Superpriority Credit Facility is subject to the Intercreditor Agreements or (iii) the Lien thereon securing the obligations under the 2025 Credit Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Canadian Note Parties, or the provision of Guarantees by any Canadian Subsidiary (i) if, and for so long as and to the extent that the Trustee and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other taxes)), outweighs the benefits to be obtained by the Holders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the PPSA or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral of the Canadian Note Parties shall include any proceeds and/or receivables arising out of any contract described
in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the PPSA or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Canadian Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Canadian Collateral Agreement, (c) except with respect to any Required Accounts, in no event shall Control Agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of PPSA financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 other than the filing of PPSA financing statements and, other than the filing of PPSA financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. or Canadian jurisdiction or required by the laws of any non-U.S. or Canadian jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States or Canada (including any Capital Stock of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets, (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of PPSA financing statements), (h) no Note Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Property. The Trustee may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Issue Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Indenture or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Collateral Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Credit Facility, 2025 Credit Facility, 2023 Credit Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Canadian Note Party” means any Note Party incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof.
“Canadian Subsidiary” means each Subsidiary incorporated, formed or organized, under the laws of Canada or a province or territory thereof.
“Capital Stock” of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any Preferred Stock and limited liability or partnership interests (whether general or limited), but excluding any debt securities convertible or exchangeable into such equity.
“Capitalized Lease Obligations” means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP. The amount of Indebtedness represented by such obligation will be the capitalized amount of such obligation at the time any determination thereof is to be made as determined in accordance with GAAP, and the
Stated Maturity thereof will be the date of the last payment of rent or any other amount due under such lease prior to the first date such lease may be terminated without penalty.
“Cash Equivalents” means:
(1)U.S. dollars, Canadian dollars, Swiss Francs, Pounds Sterling, Japanese Yen, Euros or any national currency of any participating member state of the EMU or, in the case of a Foreign Subsidiary, such other local currencies held by it from time to time in the ordinary course of business;
(2)securities issued or directly and fully Guaranteed or insured by the U.S. government or any agency or instrumentality of the United States (provided that the full faith and credit of the United States is pledged in support thereof);
(3)marketable general obligations issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof or issued by any foreign government or any political subdivision or any public instrumentality thereof, in each case having an Investment Grade Rating;
(4)certificates of deposit, time deposits, eurodollar time deposits, overnight bank deposits or bankers’ acceptances issued by any commercial bank having a combined capital and surplus in excess of $250.0 million, in the case of U.S. banks, and $100.0 million, in the case of non-U.S. banks;
(5)repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (2), (3) and (4) entered into with any bank meeting the qualifications specified in clause (4) above;
(6)bonds with an Investment Grade Rating and Preferred Stock issued by Persons with an Investment Grade Rating, including municipal bonds, corporate bonds and treasury bonds;
(7)(i) commercial paper issued by any bank meeting the qualifications specified in clause (4) above or by the parent company of any such bank, (ii) commercial paper with a short- term commercial paper rating of at least “A-2” or the equivalent thereof by S&P or “P-2” or the equivalent thereof by Moody’s, or carrying an equivalent rating by a nationally recognized Rating Agency, if both of the two named Rating Agencies cease publishing ratings of investments, and (iii) marketable short-term money market and similar funds having the equivalent of an Investment Grade Rating;
(8)interests in any money market fund substantially all of the assets of which are comprised of instruments of the type specified in clauses (1) through (7) above;
(9)other securities and financial instruments which offer a security comparable to the instruments specified in clauses (1) through (8) above; and
(10)in the case of any Foreign Subsidiary, investments of the type and maturity described in clauses (1) through (9) above of foreign obligors, which investments or obligors have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies.
“Cash Management Agreement” means any agreement providing cash management services for collections, treasury management services (including controlled disbursement, overdraft,
automated clearing house fund transfer services, return items and interstate depository network services), any demand deposit, payroll, trust or operating account relationships, commercial credit cards, merchant card, purchase or debit cards, non-card e-payables services, and other cash management services, including electronic funds transfer services, lockbox services, stop payment services and wire transfer services that is in effect on the Issue Date or thereafter and is by and among the Company or any of its Subsidiaries and a Cash Management Bank.
“Cash Management Bank” means the administrative agent and any lender under the ABL Facility or any Affiliate or branch thereof that is a party to a Cash Management Agreement with the Company or any of its Subsidiaries and, with respect to any Cash Management Agreement entered into prior to the Issue Date, any Person that was the administrative agent, a lender under the ABL Facility or any Affiliate thereof at the time it entered into a Cash Management Agreement with the Company or any of its Subsidiaries.
“Change of Control” means:
(1)any “person” or “group” of related persons (as such terms are used in Sections 13(d) and 14(d) of the Exchange Act) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that such person or group shall be deemed to have “beneficial ownership” of all shares that any such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Company or any of its direct or indirect parent entities (or their successors by merger, amalgamation, consolidation or purchase of all or substantially all of their assets);
(2)the merger or consolidation of the Company with or into another Person or the merger of another Person with or into the Company or the merger or amalgamation of any Person with or into a Subsidiary of the Company, unless the holders of a majority of the aggregate voting power of the Voting Stock of the Company, immediately prior to such transaction, hold securities of the surviving, continuing or transferee Person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the Voting Stock of the surviving or transferee Person;
(3)the first day on which a majority of the members of the full Board of Directors of the Company or any direct or indirect parent entity of the Company are not Continuing Directors;
(4)the sale, assignment, conveyance, transfer, lease or other disposition (other than by way of merger, amalgamation or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company or any direct or indirect parent entity of the Company and its Subsidiaries, taken as a whole, to any “person” (as such term is used in Sections 13(d) and 14(d) of the Exchange Act);
(5)the adoption by the shareholders of the Company or the Issuer or any direct or indirect parent entity of the Company or the Issuer of a plan or proposal for the liquidation or dissolution of the Company or the Issuer;
(6)the Company shall cease to own, directly or indirectly, all of the Capital Stock of the Issuer; or
(7)the occurrence of any event or circumstance that constitutes a “change of control” (as such term (or any reasonably synonymous term) is defined under any of the ABL
Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2025 U.S. Notes Indenture, the 2024 Notes Indenture or the New 2L Notes Indenture (or under any documents governing any Indebtedness that has refinanced any of the foregoing)).
“China Joint Venture” means the Company’s joint venture with Inspur Group, Inspur Financial Technology Service Co., Ltd. (including any successor entity thereto).
“China JV Restructuring” means a transaction or series of related transactions restructuring the ownership holdings of (i) Diebold Financial Equipment Company (“DFEC”), an entity formed under the laws of the People’s Republic of China and owned by Diebold Nixdorf Switzerland Holding Company Sarl, a limited liability company formed under the laws of Switzerland (“Swiss Holdco”) and IFIT, and (ii) Inspur Financial Information Technology Co., Ltd. (“IFIT”), an entity formed under the laws of the People’s Republic of China and as of the Original Issue Date owned by Swiss Holdco and a third-party joint venture partner (the “IFIT Partner”), pursuant to which Swiss Holdco will continue to hold ownership interests in IFIT directly and in DFEC indirectly and, for the avoidance of doubt, any Asset Dispositions, Investments and Restricted Payments made and/or received by DFEC, IFIT, Swiss Holdco and the IFIT Partner for the purpose of consummating such restructuring transactions; provided that no assets of the Company or any Subsidiary of the Company (other than those of DFEC and IFIT and Capital Stock of such entities) shall be subject to the China JV Restructuring and no assets shall be transferred to the IFIT Partner in connection therewith except for Restricted Payments made on a ratable basis otherwise permitted by this Indenture (without reference to this definition).
“Clearstream” means Clearstream Banking, S.A., or any successor securities clearing
agency.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means, collectively, all of the assets and property (including Capital Stock)
and interests therein and proceeds thereof, whether now owned or hereafter acquired, other than Excluded Property, in or upon which a Lien is granted pursuant to the Collateral Documents as security for the Obligations under this Indenture, the Notes, the Note Guarantees and any related Obligations, but shall in all events with respect to Note Parties organized or incorporated outside the United States (or any state or territory thereof), other than the Canadian Note Parties, be limited by and subject in all respects to the Agreed Security Principles and exclude all Foreign Excluded Property.
“Collateral and Guarantee Requirements” means, at any time, collectively, the Domestic Collateral and Guarantee Requirement, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
“Collateral Documents” means, collectively, the Security Agreement, each Mortgage, the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents and the other security agreements, pledge agreements, deeds of hypothec, agency agreements, mortgages, deeds of trust, collateral assignments, collateral agency agreements, control agreements, debentures, charges and other instruments and documents executed and delivered by the Issuer or any Guarantor pursuant to this Indenture or any of the foregoing (including, without limitation, the financing statements under the Uniform Commercial Code of the relevant state or the PPSA of the relevant provinces or territories), as the same may be amended, supplemented or otherwise modified from time to time and pursuant to which Collateral is pledged, assigned, charged or granted to
or on behalf of the Notes Collateral Agent for the ratable benefit of the Holders and the Trustee or perfected or notice of such pledge, assignment or grant is given.
“Commodity Agreement” means, with respect to any Person, any commodity future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is a party or beneficiary.
“Common Depositary” means the common depositary for Euroclear and Clearstream with respect to the Notes.
“Common Stock” means with respect to any Person, any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or nonvoting) of such Person’s common stock, whether or not outstanding on the Issue Date, and includes, without limitation, all series and classes of such common stock.
“Company” means the party named as such in the first paragraph of this Indenture or any successor obligor to its obligations under this Indenture and the Notes pursuant to ARTICLE 5. “Consolidated Coverage Ratio” means as of any date of determination, with respect to any Person, the ratio of (x) the aggregate amount of Consolidated EBITDA of such Person for the period of the most recent four consecutive fiscal quarters ending prior to the date of such determination for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available to (y) Consolidated Interest Expense for such four fiscal quarters; provided, however, that:
(1)if the Company or any Subsidiary:
(g)has Incurred any Indebtedness since the beginning of such period that remains outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes an Incurrence of Indebtedness, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such Indebtedness as if such Indebtedness had been Incurred on the first day of such period and the discharge of any other Indebtedness repaid, repurchased, redeemed, retired, defeased or otherwise discharged with the proceeds of such new Indebtedness as if such discharge had occurred on the first day of such period; or
(h)has repaid, repurchased, redeemed, retired, defeased or otherwise discharged any Indebtedness since the beginning of the period that is no longer outstanding on such date of determination or if the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes a discharge of Indebtedness (in each case, other than Indebtedness Incurred under any revolving Debt Facility unless such Indebtedness has been permanently repaid and the related commitment terminated and not replaced), Consolidated Interest Expense for such period will be calculated after giving effect on a pro forma basis to such discharge of such Indebtedness, including with the proceeds of such new Indebtedness, as if such discharge had occurred on the first day of such period;
(2)if since the beginning of such period, the Company or any Subsidiary will have made any Asset Disposition or disposed of or discontinued (as defined under GAAP) any company, division, operating unit, segment, business, group of related assets or line of business or if
the transaction giving rise to the need to calculate the Consolidated Coverage Ratio includes such a transaction:
(i)the Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) directly attributable to the assets that are the subject of such disposition or discontinuation for such period or increased by an amount equal to the Consolidated EBITDA (if negative) directly attributable thereto for such period; and
(j)Consolidated Interest Expense for such period will be reduced by an amount equal to the Consolidated Interest Expense directly attributable to any Indebtedness of the Company or any Subsidiary repaid, repurchased, redeemed, retired, defeased or otherwise discharged (to the extent the related commitment is permanently reduced) with respect to the Company and its continuing Subsidiaries in connection with such transaction for such period (or, if the Capital Stock of any Subsidiary is sold, the Consolidated Interest Expense for such period directly attributable to the Indebtedness of such Subsidiary to the extent the Company and its continuing Subsidiaries are no longer liable for such Indebtedness after such sale);
(3)if since the beginning of such period the Company or any Subsidiary (by merger, amalgamation or otherwise) will have made an Investment in any Subsidiary (or any Person that becomes a Subsidiary or is merged or amalgamated with or into the Company or a Subsidiary) or an acquisition of assets, including any acquisition of assets occurring in connection with a transaction causing a calculation to be made hereunder, which constitutes all or substantially all of a company, division, operating unit, segment, business, group of related assets or line of business, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto (including the Incurrence of any Indebtedness) as if such Investment or acquisition occurred on the first day of such period; and
(4)if since the beginning of such period any Person (that subsequently became a Subsidiary or was merged or amalgamated with or into the Company or any Subsidiary since the beginning of such period) will have Incurred any Indebtedness or discharged any Indebtedness or made any disposition or any Investment or acquisition of assets that would have required an adjustment pursuant to clause (1), (2) or (3) above if made by the Company or a Subsidiary during such period, Consolidated EBITDA and Consolidated Interest Expense for such period will be calculated after giving pro forma effect thereto as if such transaction occurred on the first day of such period.
For purposes of this definition, whenever pro forma effect is to be given to any pro forma event, the pro forma calculations (and, for the avoidance of doubt, all other calculations to be made pursuant to this definition) shall be made in good faith by a responsible financial or accounting officer of the Company. Without duplication of clauses (h) and (i) under section (1) of the definition of “Consolidated EBITDA,” any such calculation shall give effect to the Synergies, Costs of Synergies and other non-recurring costs, charges, accruals, reserves or expenses that have been incurred or realized or are reasonably anticipated to be incurred or realized in good faith subject, in any calculation of pro forma Consolidated EBITDA, to the applicable limitations on such Synergies, Costs of Synergies and other non-recurring costs, charges, accruals, reserves or expenses set forth in the definition of “Consolidated EBITDA.”
If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest expense on such Indebtedness will be calculated as if the rate in effect on the date of determination had
been the applicable rate for the entire period (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of twelve months). If any Indebtedness that is being given pro forma effect bears an interest rate at the option of the Company, the interest rate shall be calculated by applying such optional rate chosen by the Company. In making any pro forma calculation, the amount of Indebtedness under any revolving Debt Facility outstanding on the date of determination (other than any Indebtedness Incurred under such facility in connection with the transaction giving rise to the need to calculate the Consolidated Coverage Ratio) will be deemed to be:
(i)the average daily balance of such Indebtedness during such four fiscal quarters or such shorter period for which such facility was outstanding; or
(ii)if such facility was created after the end of such four fiscal quarters, the average daily balance of such Indebtedness during the period from the date of creation of such facility to the date of such determination.
“Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated Net Income of such Person for such period:
(1)increased (without duplication) by the following items to the extent deducted in calculating such Consolidated Net Income:
(a)Consolidated Interest Expense; plus
(b)Consolidated Income Taxes; plus
(c)consolidated depreciation and amortization expense; plus
(d)goodwill, long-lived assets and other impairment charges; plus
(e)other non-cash charges, including any write-offs or write-downs (excluding any such non-cash charge to the extent it represents an accrual of or reserve for cash charges in any future period or amortization of a prepaid cash expense that was capitalized at the time of payment); plus
(f)(i) any fees, costs, expenses or charges related to any Equity Offering, Asset Disposition or other Investment permitted under this Indenture, recapitalization or Incurrence or amendments of Indebtedness permitted to be made under this Indenture (whether or not successful) and (ii) any fees, costs, expenses or charges Incurred by the Company or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or Net Cash Proceeds of an issuance of Capital Stock of the Company; plus
(g)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Asset Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the
applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); plus
(h)synergies and cost savings of the Company and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives (“Synergies”) and costs, charges, accruals, reserves or expenses of the Company and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Asset Disposition by the Company or its Subsidiaries outside the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring initiatives enacted after the date hereof (it being understood any such increases pursuant to this clause (h) related to an Asset Disposition shall only be available subject to the consummation of the Asset Disposition and not in contemplation thereof), in each case, that are set forth in an Officer’s Certificate and that are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Company in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Asset Disposition or the decision to implement such restructuring initiative (calculated on a pro forma basis in a manner consistent with the definition of “Consolidated Coverage Ratio” and net of the amount of actual benefits realized during such period from such actions to the extent already included in Consolidated Net Income for such period); provided that the aggregate amount added back in reliance on this clause (h) in any four-fiscal quarter period shall not exceed 10.0% of Consolidated EBITDA for such four-fiscal quarter period (calculated before giving effect to any add-backs and adjustments in this clause (h) and in clause (i) below); plus
(i)non-recurring costs, charges, accruals, reserves or expenses attributable or related to the Company’s DN Now transformation program Incurred by the Company and its Subsidiaries that are set forth in an Officer’s Certificate and are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate); provided that (x) the aggregate amount added back in reliance on this clause (i) in the year ending December 31, 2020 shall not exceed
$80.0 million, (y) the aggregate amount added back in reliance on this clause (i) in the year ending December 31, 2021 shall not exceed $50.0 million and (z) no amount shall be added back in reliance on this clause (i) in any period after December 31, 2021; and
(2)decreased (without duplication) by non-cash items increasing such Consolidated Net Income (excluding any such items which represent the recognition of deferred revenue, the reversal of any accrual of, or reserve for, anticipated cash charges that reduced Consolidated EBITDA in any prior period, and any such items for which cash was received in a prior period that did not increase Consolidated EBITDA in any prior period) and if Consolidated Income Taxes is a benefit, by the amount of such benefit.
“Consolidated Income Taxes” means, with respect to any Person for any period, taxes imposed upon such Person or any of its consolidated Subsidiaries or other payments required to be made by such Person or any of its consolidated Subsidiaries to any governmental authority, which taxes or other payments are calculated by reference to the income or profits or capital of such Person or any of its
consolidated Subsidiaries (to the extent such income or profits were included in computing Consolidated Net Income for such period), including, without limitation, state, provincial, territorial, franchise and similar taxes and foreign withholding taxes regardless of whether such taxes or payments are required to be remitted to any governmental authority.
“Consolidated Interest Expense” means, with respect to any Person for any period, the total interest expense of such Person and its consolidated Subsidiaries, determined on a consolidated basis in accordance with GAAP, whether paid or accrued, plus, to the extent not included in such interest expense (without duplication):
(1)interest expense attributable to Capitalized Lease Obligations;
(2)amortization of debt discount (including the amortization of original issue discount resulting from the issuance of Indebtedness at less than par) and debt issuance costs; provided, however, that any amortization of bond premium will be credited to reduce Consolidated Interest Expense unless, pursuant to GAAP, such amortization of bond premium has otherwise reduced Consolidated Interest Expense;
(3)non-cash interest expense, but any non-cash interest income or expense attributable to the movement in the mark-to-market valuation of Hedging Obligations or other derivative instruments pursuant to GAAP shall be excluded from the calculation of Consolidated Interest Expense;
(4)commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing;
(5)the interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries;
(6)the net costs associated with entering into Hedging Obligations (including amortization of fees) related to Indebtedness;
(7)interest expense of such Person and its Subsidiaries that was capitalized during such period; and
(8)the product of (a) all dividends paid or payable, in cash, Cash Equivalents or Indebtedness or accrued during such period on any series of Disqualified Stock or on Preferred Stock of Non-Guarantor Subsidiaries payable to a party other than the Company or a Wholly Owned Subsidiary, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state, provincial, territorial and local statutory tax rate of such Person, expressed as a decimal, in each case on a consolidated basis and in accordance with GAAP.
For purposes of the foregoing, total interest expense will be determined (i) after giving effect to any net payments made or received by the Company and its Subsidiaries with respect to Interest Rate Agreements and (ii) exclusive of amounts classified as other comprehensive income on the balance sheet of the Company. Notwithstanding anything to the contrary contained herein, subject to the proviso above, commissions, discounts, yield and other fees and charges Incurred in connection with any transaction pursuant to which the Company or its Subsidiaries may sell, convey or otherwise transfer or grant a security interest in any accounts receivable or related assets shall be included in Consolidated Interest Expense.
“Consolidated Net Income” means, for any period, the net income (loss) of the Company and its Subsidiaries determined on a consolidated basis in accordance with GAAP; provided, however, that there will not be included in such Consolidated Net Income on an after-tax basis:
(1)any net income (loss) of any Person if such Person is not a Subsidiary or that is accounted for by the equity method of accounting, except that:
(k)subject to the limitations contained in clauses (3) through (9) below, the Company’s equity in the net income of any such Person for such period will be included in such Consolidated Net Income up to the aggregate amount of cash actually distributed by such Person during such period to the Company or a Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Subsidiary, to the limitations contained in clause (2) below); and
(l)the Company’s equity in a net loss of any such Person for such period will be included in determining such Consolidated Net Income to the extent such loss has been funded with cash from the Company or a Subsidiary;
(2)any net income (but not loss) of any Subsidiary (other than a Guarantor) if such Subsidiary is subject to prior government approval or other restrictions due to the operation of its charter or any agreement, instrument, judgment, decree, order statute, rule or government regulation (which have not been obtained or waived), directly or indirectly, on the payment of dividends or the making of distributions by such Subsidiary, directly or indirectly, to the Company, except that:
(m)subject to the limitations contained in clauses (3) through (9) below, the Company’s equity in the net income of any such Subsidiary for such period will be included in such Consolidated Net Income up to the aggregate amount of cash that could have been distributed by such Subsidiary during such period to the Company or another Subsidiary as a dividend (subject, in the case of a dividend to another Subsidiary, to the limitation contained in this clause); and
(n)the Company’s equity in a net loss of any such Subsidiary for such period will be included in determining such Consolidated Net Income;
(3)any gain or loss (excluding all fees and expenses relating thereto) realized upon sales or other dispositions of any assets of the Company or such Subsidiary outside the ordinary course of business;
(4)any non-cash compensation charge or expense arising from any grant of stock, stock options or other equity-based awards, including any such charge or expense Incurred in connection with any merger, amalgamation, consolidation or acquisition;
(5)any income or loss from the early extinguishment of Indebtedness or early termination of Hedging Obligations or other derivative instruments;
(6)any extraordinary gain or loss;
(7)any net after-tax effect of gains or losses attributable to disposed or discontinued operations;
(8)any net income or loss included in the consolidated statement of operations with respect to noncontrolling interests; and
(9)the cumulative effect of a change in accounting principles.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Company or any direct or indirect parent company of the Company who: (1) was a member of such Board of Directors on the Issue Date; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.
“Control Agreement” means an agreement, in form and substance reasonably satisfactory to the Trustee (and, in the case of protections for the benefit of the Notes Collateral Agent or obligations of the Notes Collateral Agent, the Notes Collateral Agent), which provides for the Notes Collateral Agent to have control (including “control” as defined in Section 9-104 of the UCC or Section 8-106 of the UCC, as applicable) of “deposit accounts” (as defined in the UCC or the Canadian Collateral Agreement, as applicable) or “securities accounts” (as defined in the UCC or PPSA), as applicable.
“Corporate Trust Office of the Trustee” shall be at the address of the Trustee specified in Section 13.02 or such other address as to which the Trustee may give notice to the Holders and the Company.
“Covered Guarantors” means Diebold Global Finance Corporation, Diebold Holding Company, LLC, Diebold SST Holding Company, LLC, Diebold Nixdorf Technology Finance, LLC, Griffin Technology Incorporated, Diebold Self Service Systems, Diebold Nixdorf Canada, Limited, Diebold Canada Holding Company Inc., Diebold Nixdorf, Incorporated, Diebold Nixdorf BV, Diebold Nixdorf Global Holding B.V., Diebold Nixdorf B.V., Diebold Nixdorf Software Partner B.V., Diebold Nixdorf Software C.V., Diebold Nixdorf Global Solutions B.V., Diebold Nixdorf Holding Germany GmbH, Wincor Nixdorf International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, Diebold Nixdorf Global Logistics GmbH, Wincor Nixdorf Facility GmbH, Diebold Nixdorf Real Estate GmbH & CoKG, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Finance Germany GmbH, Diebold Nixdorf S.r.l., Diebold Nixdorf sp. z o.o., Diebold Nixdorf BPO sp. z o.o., Diebold Nixdorf S.L., Diebold Nixdorf AB and Diebold Nixdorf (UK) Limited.
“Currency Agreement” means, with respect to any Person, any foreign exchange future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is a party or a beneficiary.
“Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any successor entity thereto.
“Debt Facility” means one or more debt facilities or commercial paper facilities with banks or other institutional lenders providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables) or letters of credit or issuances of debt securities evidenced by notes, debentures, bonds or similar instruments, in each case, as amended, restated, modified, renewed, refunded, replaced or refinanced (including by means of sales of debt securities) in whole or in part from time to time (and whether or not with the original administrative agent, lenders or trustee or another administrative agent or agents, other lenders or trustee of such Debt Facility).
“Default” means any event that is, or after notice or passage of time, or both, would be, an Event of Default.
“Definitive Note” means a certificated Existing Note or Additional Note (bearing the Restricted Notes Legend if the transfer of such Note is restricted by applicable law) that does not include the Global Notes Legend.
“Diebold Germany” means Diebold Nixdorf Holding Germany GmbH.
“Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
(1)matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(2)is convertible into or exchangeable for Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Company) (it being understood that upon such conversion or exchange it shall be an Incurrence of such Indebtedness or Disqualified Stock)); or
(3)is redeemable at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the date 91 days after the earlier of the final maturity date of the Notes or the date the Notes are no longer outstanding; provided, however, that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further, that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Company or its Subsidiaries to repurchase such Capital Stock upon the occurrence of a Change of Control or Asset Disposition (each defined in a substantially identical manner to the corresponding definitions in this Indenture) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) provide that the Company or its Subsidiaries, as applicable, are not required to repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or exchangeable or for which it is redeemable) pursuant to such provision prior to compliance by the Company with Section 4.15 and Section 4.16 and such repurchase or redemption complies with Section 4.08. Notwithstanding the foregoing, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, Officers, employees, members of management, managers or consultants or by any such plan to such directors, Officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Company or any Subsidiary, such Capital Stock shall not constitute Disqualified Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former employee, director, Officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Company (or any Subsidiary) shall be considered Disqualified Stock because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, shareholder agreement or similar agreement that may be in effect from time to time.
“Domestic Collateral and Guarantee Requirement” means, at any time and solely with respect to each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Trustee and the Notes Collateral Agent shall have received from (i) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the applicable supplemental indenture hereto duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplemental indenture hereto duly executed and delivered on behalf of such Person, (ii) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Security Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Domestic Note Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Note Party after the Issue Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Note Documents executed and delivered after the Issue Date, documents and, to the extent reasonably requested by the Trustee or the Notes Collateral Agent;
(b)all outstanding Capital Stock of the Issuer, the Company and the Subsidiaries (other than any Capital Stock constituting Excluded Property) owned by or on behalf of any Domestic Note Party shall have been pledged pursuant to the Security Agreement and the Notes Collateral Agent shall have received certificates or other instruments representing all such Capital Stock (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Issuer, the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Domestic Note Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Security Agreement and the Notes Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, Control Agreements and intellectual property security agreements, required by the Collateral Documents or Requirements of Law and reasonably requested by the Trustee, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Domestic Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Trustee in proper form for filing, registration or recording;
(e)the Notes Collateral Agent shall have received as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Notes Collateral Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Notes Collateral Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Notes Collateral Agent, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 4.10, together
with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Notes Collateral Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Notes Collateral Agent of payment by the Issuer, the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vi) completed “Life-of-Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Note Party relating thereto), (vii) if any Mortgaged Property is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors and the other Flood Insurance Regulations, and (viii) such legal opinions as the Trustee or the Notes Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Domestic Note Party on the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Issue Date (or such later date as the Trustee shall reasonably agree), (ii) with respect to any Required Account established by a Domestic Note Party after the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Trustee shall reasonably agree), and
(iii) with respect to any Required Account acquired by a Domestic Note Party after the Issue Date, each Domestic Note Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Trustee shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Trustee. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement, (ii) the Lien thereon securing the obligations under the Superpriority Credit Facility is subject to the Intercreditor Agreements or (iii) the Lien thereon securing the obligations under the 2025 Credit Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Note Parties, or the provision of Guarantees by the Company or any Subsidiary (i) if, and for so long as and to the extent that the Trustee and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse tax consequences to the Company and its Subsidiaries (including the imposition of
material withholding or other taxes)), outweighs the benefits to be obtained by the Holders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Domestic Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Collateral Documents, (c) except with respect to any Required Accounts, in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 and, other than the filing of UCC financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Capital Stock of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that except as set forth in the Foreign Note Documents or as expressly required by the Agreed Security Principles, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) no Note Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Property. The Trustee may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Issue Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Indenture or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Credit Facility, 2025 Credit Facility, 2023 Credit Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Domestic Note Party” means a Note Party that is not a Foreign Subsidiary. “Domestic Subsidiary” means any Subsidiary other than a Foreign Subsidiary.
“Domination Agreement” means a domination agreement (Beherrschungvertrag) within the meaning of Sec 291(1) of the German Stock Corporation Act (Aktiengesetz) among the Company (or any of its direct or indirect Wholly Owned Subsidiaries), Wincor Nixdorf and the other parties thereto.
“Dutch Collateral Agreements” means the collateral agreements governed by Dutch law set forth on Appendix C hereof, each dated as of the Issue Date between each Note Party from time to time party thereto and the Notes Collateral Agent.
“Dutch Collateral Documents” means each of the Dutch Collateral Agreements, and each other security agreement, pledge, mortgage or other instrument or document, as applicable, governed by Dutch law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Dutch Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Dutch Guarantor” means any Guarantor organized or incorporated in the Netherlands. “EMU” means the European Economic and Monetary Union in accordance with the
Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
“EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states of the European Union.
“English Collateral Agreements” means the collateral agreements governed by English law set forth on Appendix C hereof.
“English Collateral Documents” means (a) the English Collateral Agreements and (b) each other security agreement, charge, assignment by way of security, lien, pledge, debenture, hypothec, mortgage or other instrument or document, as applicable, governed by English law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each English Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Equity Offering” means an offering for cash by the Company of its Common Stock, or options, warrants or rights with respect to its Common Stock, other than (1) public offerings with respect to the Company’s Common Stock, or options, warrants or rights, registered on Form S-4 or S-8, (2) an issuance to any Subsidiary or (3) any offering of Common Stock issued in connection with a transaction that constitutes a Change of Control.
“Euro” means the single currency unit of the member states of the European Union that have the euro as their lawful currency in accordance with the EMU Legislation.
“Euroclear” means Euroclear Bank SA/NV, or any successor securities clearing agency. “Exchange” means The International Stock Exchange.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Excluded Property” means:
(1)any fee-owned real property located outside the United States (i) that is excluded to the extent that security interests over such assets would result in material adverse tax treatment or (ii) that is not Material Real Property;
(2)any fee-owned real property located in the United States that is not Material Real
Property;
(3)leasehold interests (it being understood that there shall be no requirement to
obtain leasehold mortgages/deeds of trusts, landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents);
(4)those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti- assignment provisions of the Uniform Commercial Code, the PPSA or other applicable law), or to the extent that such security interests would result in material adverse tax consequences to the Company and its Subsidiaries, taken as a whole, as reasonably determined in good faith by the Company;
(5)those assets as to which the Superpriority Credit Facility Administrative Agent (acting at the direction of the Required Superpriority Lenders) and the Company reasonably determine that the costs of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the holders of Priority Secured Indebtedness under the Superpriority Credit Facility of the security to be afforded thereby;
(6)any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto;
(7)to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Superpriority Credit Facility Administrative Agent (acting at the direction of the Required Superpriority Lenders), equity interests in any person other than Wholly Owned Subsidiaries;
(8)margin stock;
(9)letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that the Company and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below $2,000,000 (except to the extent perfection can be achieved by the filing of a Uniform Commercial Code financing statement or PPSA financing statement in the state of the Issuer, the Company or such Subsidiary Guarantor’s jurisdiction of organization or location of its chief executive office, as applicable);
(10)any governmental licenses or state, provincial, territorial or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and the PPSA, as applicable, and excluding the proceeds and receivables thereof);
(11)any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a
security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Company or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code and the PPSA, as applicable, other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the Uniform Commercial Code or the PPSA notwithstanding such prohibition, but in each case subject to the terms of the Collateral and Guarantee Requirements (other than to the extent no additional action needs to be taken with respect to any such assets to create or perfect a security interest in any such assets);
(12)the Specified Intercompany Claims; and
(13)any property excluded pursuant to the Agreed Security Principles;
provided, however, that notwithstanding the foregoing provisions of this definition or anything in this Indenture or any other Note Document to the contrary, any asset (other than the Paderborn Property) that does not constitute “Excluded Property” or “Excluded Assets”, as applicable, under and as defined in the 2025 U.S. Notes Indenture, New 2L Notes Indenture, Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, and/or the ABL Facility shall not constitute “Excluded Property” for purposes of this Indenture and the other Note Documents.
“Excluded Subsidiary” means any (i) Foreign Subsidiary (other than a Specified Foreign Subsidiary), (ii) Domestic Subsidiary of a Foreign Subsidiary (other than a Specified Foreign Subsidiary),
(iii) Domestic Subsidiary substantially all of the assets of which are Capital Stock or Indebtedness of Excluded Subsidiaries under clause (i) of this definition, (iv) other Subsidiary excused from becoming a Note Party pursuant to clause (a) of the penultimate paragraph of the definition of the term “Domestic Collateral and Guarantee Requirement” or of the term “Canadian Collateral and Guarantee Requirement” or the terms of the Agreed Security Principles, (v) any non-Wholly Owned Subsidiary to the extent the provision of a Guarantee or granting of a Lien thereby is restricted or prohibited pursuant to applicable local law or contractual requirements and (vi) Immaterial Subsidiaries.
“Fair Market Value” means, with respect to any asset or liability, the fair market value of such asset or liability as determined by the Company in good faith (including as to the value of all non- cash assets and liabilities).
“First Lien Pari Passu Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Collateral Agent, Superpriority Credit Facility Administrative Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, the 2023 Credit Facility Administrative Agent, the 2023 Credit Facility Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Foreign Collateral” means, collectively, the Non-ABL Foreign Collateral and the ABL Priority Foreign Collateral.
“Foreign Excluded Property” means any asset or undertaking not required to be charged or secured or not subject to any applicable Collateral Document pursuant to and in accordance with the terms of the Canadian Collateral and Guarantee Requirement and Agreed Security Principles.
“Foreign Intellectual Property” means any right, title or interest in or to any intellectual property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.
“Foreign Note Documents” means the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents, any supplemental indenture hereto relating to the addition of Foreign Note Parties and any other Note Document which is not governed by the laws of the United States of America or any state or territory thereof.
“Foreign Note Parties” means each Note Party organized under the laws of a jurisdiction outside of the United States.
“Foreign Subsidiary” means any Subsidiary that is not organized under the laws of the United States or any state thereof or the District of Columbia.
“French Collateral Agreements” means the collateral agreements governed by French law set forth on Appendix C hereof.
“French Collateral Documents” means the French Collateral Agreements and each security agreement, pledge, mortgage, any type of security (sûreté réelle), transfer or assignment by way of security and fiducie-sûreté or other instrument or document, as applicable, governed by French law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each French Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent. “French Commercial Code” means the French Code de commerce.
“French Guarantor” means any Guarantor incorporated in France.
“GAAP” means generally accepted accounting principles in the United States as in effect as of the Issue Date, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. Unless otherwise specified, all ratios and computations, contained in this Indenture will be computed in conformity with GAAP, except that (1) in the event the Company is acquired in a transaction that is accounted for using purchase accounting, the effects of the application of purchase accounting shall be disregarded in the calculation of such ratios and other computations contained in this Indenture and (2) all obligations of the Company and its Subsidiaries that are or would be characterized as an operating lease as determined in accordance with GAAP prior to January 1, 2019 (whether or not such operating lease was in effect on such date) shall continue to be accounted for as an operating lease (and not as a Capitalized Lease Obligation) for purposes of this Indenture regardless of any change in GAAP on or after January 1, 2019 (or any change in the implementation in GAAP for future periods that are contemplated as of such date) that would otherwise require such obligation to be recharacterized as a Capitalized Lease Obligation or otherwise as Indebtedness.
“German Collateral Agreements” means the collateral agreements governed by German law set forth on Appendix C hereof.
“German Collateral Documents” means each of the German Collateral Agreements, and each other security agreement or other instrument or document, as applicable, governed by German law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each German Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Government Securities” means securities that are (1) direct obligations of any country that is a member of the European Union for the timely payment of which its full faith and credit is pledged or (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of any such country the timely payment of which is unconditionally Guaranteed as a full faith and credit obligation of such country, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank, as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depositary receipt.
“Guarantee” means (1) any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and (2) any obligation, direct or indirect, contingent or otherwise, of such Person:
(a)to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or
(b)entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part); provided, however, that the term “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business.
“Guarantor” means the Company and each Subsidiary in existence on the Original Issue Date that provides a Note Guarantee on the Original Issue Date (and any other Subsidiary that provides a Note Guarantee after the Original Issue Date); provided that upon release or discharge of such Subsidiary from its Note Guarantee in accordance with this Indenture, such Subsidiary ceases to be a Guarantor.
“Guarantor Release Protection Provisions” mean (a) each of the provisions under (i) ARTICLE 10, (ii) Section 4.11 and (iii) Section 5.01, and (b) the Event of Default described in clause (9) under the definition of “Event of Default.”
“Guarantor Subordinated Obligation” means, with respect to a Guarantor, any Indebtedness of such Guarantor (whether outstanding on the Issue Date or thereafter Incurred) that is expressly subordinated in right of payment to the obligations of such Guarantor under its Note Guarantee.
“Hedging Obligations” of any Person means the obligations of such Person pursuant to any Interest Rate Agreement, Currency Agreement or Commodity Agreement.
“Holder” means a Person in whose name a Note is registered on the Registrar’s books. “Immaterial Subsidiary” means, as of any date of determination, any Subsidiary that,
together with its Subsidiaries on a consolidated basis, accounts for not more than (1) 5.0% of the total
assets of the Company and its Subsidiaries as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (the “balance sheet date”) or (2) 5.0% of the total revenues (after intercompany eliminations) of the Company and its Subsidiaries for the period of the most recent four consecutive fiscal quarters ending on such balance sheet date; provided that the aggregate total assets or revenues for all Immaterial Subsidiaries
shall not at any time exceed 10.0% of the total assets or revenues (after intercompany eliminations) of the Company and its Subsidiaries; provided further that, irrespective of the foregoing, a Subsidiary shall not be considered to be an Immaterial Subsidiary if it is a borrower or Guarantees any Priority Secured Indebtedness or Pari Passu Secured Indebtedness or Guarantees any other Indebtedness for borrowed money of the Issuer or any Guarantor.
“Incur” means issue, create, assume, Guarantee, incur or otherwise become liable for; provided, however, that any Indebtedness or Capital Stock of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) will be deemed to be Incurred by such Subsidiary at the time it becomes a Subsidiary; and the terms “Incurred”, “Incurring” and “Incurrence” have meanings correlative to the foregoing.
“Indebtedness” means, with respect to any Person on any date of determination (without
duplication):
(1)the principal of and premium (if any) in respect of indebtedness of such Person
for borrowed money;
(2)the principal of and premium (if any) in respect of obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3)all reimbursement obligations of such Person in respect of letters of credit (other than letters of credit that are secured by cash or Cash Equivalents), bankers’ acceptances or other similar instruments (excluding reimbursement obligations in respect of letters of credit or bankers’ acceptances issued in respect of trade payables, unless such obligation remains unsatisfied for more than five Business Days);
(4)the principal component of all obligations of such Person to pay the deferred and unpaid purchase price of property (including earn-out obligations), which purchase price is due more than three months after the date of placing such property in service or taking delivery and title thereto, except
(a) any such balance that constitutes a trade payable or similar obligation to a trade creditor, in each case accrued in the ordinary course of business, and (b) any earn-out obligation until the amount of such obligation becomes a liability on the balance sheet of such Person in accordance with GAAP;
(5)Capitalized Lease Obligations of such Person;
(6)the greater of the maximum mandatory redemption or repurchase price (not including, in either case, any redemption or repurchase premium) or the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Non-Guarantor Subsidiary, any Preferred Stock (but excluding, in each case, any accrued dividends);
(7)the principal component of all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness will be the lesser of (a) the Fair Market Value of such asset at such date of determination and (b) the amount of such Indebtedness of such other Persons;
(8)the principal component of Indebtedness of other Persons to the extent Guaranteed by such Person (whether or not such items would appear on the balance sheet of such Person in accordance with GAAP); and
(9)to the extent not otherwise included in this definition, net obligations of such Person under Hedging Obligations (the amount of any such obligations to be equal at any time to the termination value of such agreement or arrangement giving rise to such Obligation that would be payable by such Person at such time).
Notwithstanding the foregoing, money borrowed and set aside at the time of the Incurrence of any Indebtedness in order to pre-fund the payment of interest on such Indebtedness shall not be deemed to be “Indebtedness”; provided that such money is held to secure the payment of such interest.
Notwithstanding the foregoing, the amount of any Indebtedness outstanding as of any date shall (i) be the accreted value thereof in the case of any Indebtedness issued with original issue discount or the aggregate principal amount outstanding in the case of Indebtedness issued with interest payable in kind and (ii) include any interest (or in the case of Preferred Stock, dividends) thereon that is more than 30 days past due. Except to the extent provided in the preceding sentence, the amount of any Indebtedness that is convertible into or exchangeable for Capital Stock of the Company outstanding as of any date shall be deemed to be equal to the principal and premium, if any, in respect of such Indebtedness, notwithstanding the provisions of GAAP (including Accounting Standards Codification Topic 470-20, Debt-Debt with Conversion and Other Options).
For purposes of clause (6) above, the “maximum mandatory redemption or repurchase price” of any Disqualified Stock or Preferred Stock, as applicable, that does not have a fixed redemption or repurchase price shall be calculated in accordance with the terms of such Disqualified Stock or Preferred Stock, as applicable, as if such Disqualified Stock or Preferred Stock, as applicable, were redeemed or repurchased on any date on which an amount of Indebtedness outstanding shall be required to be determined pursuant to this Indenture.
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
“Intercreditor Agreements” means, collectively, the ABL Intercreditor Agreement, the First Lien Pari Passu Intercreditor Agreement, the Junior Lien Pari Passu Intercreditor Agreement, the Non-Released Multi Lien Intercreditor Agreement and the Multi Lien Intercreditor Agreement.
“Interest Period” means, with respect to any Note, the period commencing on and including an Interest Payment Date and ending on and including the day immediately preceding the next Interest Payment Date, with the exception that the first Interest Period with respect to any Note shall commence on and include the Original Issue Date or the Issue Date, as applicable, of such Notes and end on and exclude the first Interest Payment Date to occur after such date (the Interest Payment Date for any Interest Period shall be the interest payment date occurring on the date immediately following the last day of such Interest Period).
“Interest Payment Date” means January 15 and July 15 of each year to the Stated Maturity of the Notes.
“Interest Rate Agreement” means, with respect to any Person, any interest rate future or forward, swap or option, cap or collar or other similar agreement or arrangement as to which such Person is party or a beneficiary.
“Investment” means, with respect to any Person, all investments by such Person in other Persons (including Affiliates) in the form of any direct or indirect advance, loan or other extensions of credit (including by way of Guarantee or similar arrangement, but excluding (i) accounts receivable and
other extensions of trade credit and/or accrued expenses, in each case arising in the ordinary course of business and payable in accordance with customary practices and (ii) any debt or extension of credit represented by a bank deposit (other than a time deposit)) or capital contribution to (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others), or any purchase or acquisition of Capital Stock, Indebtedness or other similar instruments issued by, such Person and all other items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP; provided that none of the following will be deemed to be an Investment:
(1)Hedging Obligations entered into in the ordinary course of business and in compliance with this Indenture;
(2)endorsements of negotiable instruments and documents in the ordinary course of
business;
(3)an acquisition of assets, Capital Stock or other securities by the Company or a
Subsidiary for consideration to the extent such consideration consists of Common Stock of the Company;
(4)the acquisition of property and other assets from suppliers and other vendors in the ordinary course of business; and
(5)prepaid expenses and workers’ compensation, utility, lease and similar deposits in the ordinary course of business.
(1)any property transferred to or from a Subsidiary will be valued at its Fair Market Value at the time of such transfer; and
(2)if the Company or any Subsidiary sells or otherwise disposes of any Voting Stock of any Subsidiary such that, after giving effect to any such sale or disposition, such entity is no longer a Subsidiary of the Company, the Company shall be deemed to have made an Investment on the date of any such sale or disposition equal to the Fair Market Value of the Capital Stock of such Subsidiary not sold or disposed of.
“Investment Grade Rating” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or any other equivalent rating by any Rating Agency, in each case, with a stable or better outlook.
“Issue Date” means December 29, 2022.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, integrated and supplemented from time to time.
“Italian Civil Code” means the Italian civil code (“codice civile”), enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Collateral Agreements” means the collateral agreements governed by Italian law set forth on Appendix C hereof.
“Italian Collateral Documents” means the Italian Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Italian law in connection with this Indenture and the Agreed Security Principles
to secure any of the Obligations; provided that each Italian Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Italian Guarantor” shall mean a Guarantor organized or incorporated in Italy. “Junior Lien” means a Lien, junior to the Liens on the Collateral securing Pari Passu
Secured Indebtedness pursuant to the Junior Lien Pari Passu Intercreditor Agreement, granted by the Issuer or any Guarantor to secure Junior Lien Obligations. Liens on the Collateral securing ABL Indebtedness shall be deemed not to be Junior Liens.
“Junior Lien Documents” means, collectively, any indenture, note, security document and each of the other agreements, documents and instruments providing for or evidencing any Junior Lien Obligations, and any other document or instrument executed or delivered at any time in connection with any Junior Lien Obligations, to the extent such are effective at the relevant time, in each case as each may be amended, restated, supplemented, modified, renewed, extended or refinanced in whole or in part from time to time, and any other credit agreement, indenture or other agreement, document or instrument evidencing, governing, relating to or securing any Junior Lien Indebtedness.
“Junior Lien Indebtedness” means any Indebtedness of the Issuer or any Guarantor that is secured by a Junior Lien; provided that, in the case of any Indebtedness referred to in this definition:
(1)such Indebtedness does not mature and does not have any mandatory or scheduled payments or sinking fund obligations prior to the maturity date of the Notes (except as a result of customary change of control or asset sale repurchase offer provisions; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuer or such Guarantor has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer);
(2)on or before the date on which the first such Indebtedness is Incurred by the Issuer or any Guarantor, the Issuer shall deliver to each Authorized Representative complete copies of each applicable Junior Lien Document (which shall provide that each secured party with respect to such Indebtedness shall be subject to and bound by the Junior Lien Pari Passu Intercreditor Agreement), along with an Officer’s Certificate certifying as to such Junior Lien Documents and identifying the obligations constituting Junior Lien Obligations;
(3)on or before the date on which any such Indebtedness is Incurred by the Issuer or any Guarantor, such Indebtedness is designated by the Issuer, in an Officer’s Certificate delivered to the Junior Lien Representative and each Authorized Representative, as “Junior Lien Indebtedness” under this Indenture;
(4)a Junior Lien Representative is designated with respect to such Indebtedness and executes and delivers the Junior Lien Pari Passu Intercreditor Agreement (including, as applicable, a joinder thereto) on behalf of itself and all holders of such Indebtedness; and
(5)all other requirements set forth in the Junior Lien Pari Passu Intercreditor Agreement as to the confirmation, grant or perfection of the Liens of the holders of Junior Lien Indebtedness to secure such Indebtedness or Obligations in respect thereof are satisfied.
“Junior Lien Obligations” means Junior Lien Indebtedness and all other Obligations in
respect thereof.
“Junior Lien Pari Passu Intercreditor Agreement” means an intercreditor agreement which subordinates the Lien on the Collateral of the holders of the Junior Lien Indebtedness to the Lien on the Collateral of each of the holders of Pari Passu Secured Indebtedness and the terms of which are consistent with market terms (in the view of the Administrative Agent (as defined therein)) governing security arrangements for the subordination and sharing of Liens or arrangements relating to the distribution of payments, as applicable, at the time the intercreditor agreement is proposed to be established in light of the type of Indebtedness subject thereto.
“Junior Lien Representative” means in the case of any series of Junior Lien Indebtedness, the trustee, agent or representative of the holders of such series of Junior Lien Indebtedness who is appointed as a representative of the Junior Lien Indebtedness (for purposes related to the administration of security interests) pursuant to the applicable Junior Lien Document governing such series of Junior Lien Indebtedness, together with its successors and assigns in such capacity.
“Lien” means, with respect to any asset, any mortgage, lien (statutory or otherwise), pledge, hypothecation, charge, security interest, preference, priority or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the Uniform Commercial Code or the PPSA (or equivalent statutes) of any jurisdiction; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Loan” means any loans made by the lenders to Diebold Germany under the Superpriority Credit Facility.
“Loan Party” means Diebold Germany or any Guarantor that is also a guarantor under the Superpriority Credit Facility.
“Material Real Property” means, collectively, all right, title and interest in and to any and all parcels of or interests in real property owned in fee by the Issuer or any Guarantor having a Fair Market Value at the time in excess of $10.0 million.
“Moody’s” means Moody’s Investors Services, Inc. or any successor to its rating agency
business.
“Mortgaged Property” means any real property and the improvements thereon owned in
fee by a Note Party with respect to which a Mortgage is granted pursuant to Section 11.06.
“Mortgages” means the mortgages, land charges, debentures, deeds of hypothec, deeds of trust, deeds to secure Indebtedness or other similar documents in legally sufficient form to secure Liens on the Premises, as well as the other Collateral secured by and described in the mortgages, land charges, debentures, deeds of hypothec, deeds of trust, deeds to secure Indebtedness or other similar documents.
“Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Administrative Agent, the Superpriority Credit Facility Collateral Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Net Assets” for the purpose of Section 10.02(a) (Limitation on Guarantor Liability relating to any German Guarantor) means a German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) assets pursuant to Section 266 sub-section (2) A, B, C, D and E of the German Commercial Code (Handelsgesetzbuch) less the aggregate of its liabilities pursuant to Section 266 sub-section (3) B, C, D and E of the German Commercial Code, taking into consideration the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the respective German Guarantor in the preparation of its financial statements.
“Net Assets” for the purpose of Section 10.02(f) (Limitation on Guarantor Liability relating to a Belgian Guarantor) means the net assets (netto actief / actif net) of the Belgian Guarantor as defined in article 5:142 third paragraph, article 6:115 third paragraph or article 7:212 second paragraph (as applicable) of the Belgian Companies and Associations Code (as determined in accordance with the Belgian Companies and Associations Code and Belgian GAAP, a certificate of such amount from the statutory auditor of the Belgian Guarantor (or, if no statutory auditor is appointed or the statutory auditor refuses to issue such certificate, from an accountant appointed upon the Notes Collateral Agent’s request by the “Instituut van de Bedrijfsrevisoren/Institut des Réviseurs d’Entreprises”) shall be conclusive, save in the case of manifest error).
“Net Available Cash” from an Asset Disposition means cash payments received (including any cash payments received by way of deferred payment of principal pursuant to a note or installment receivable or otherwise and net proceeds from the sale or other disposition of any securities or other assets received as consideration, but only as and when received (including after release from any required escrow), but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations relating to the properties or assets that are the subject of such Asset Disposition or received in any other non-cash form) therefrom, in each case net of:
(1)all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses Incurred, and all federal, state, provincial, territorial, foreign and local taxes required to be paid or reasonably expected to be paid or accrued as a liability under GAAP (after taking into account any tax credits or deductions that are available or reasonably expected to be available and any tax sharing agreements), as a consequence of such Asset Disposition;
(2)all payments made on any Indebtedness (a) that is secured by any assets (excluding any Collateral), to the extent of the value of such assets being sold subject to such Asset Disposition and only to the extent such assets are held and sold by Non-Guarantor Subsidiaries, or (b) made by Guarantors to the extent required by (i) the terms of any applicable Priority Secured Indebtedness, (ii) any Non-Guarantor Subsidiary Indebtedness and/or (iii) applicable law;
(3)all distributions and other payments required to be made to noncontrolling interest holders in Subsidiaries or joint ventures as a result of such Asset Disposition;
(4)the deduction of appropriate amounts to be provided by the seller as a reserve, in accordance with GAAP, against any liabilities associated with the assets disposed of in such Asset Disposition and retained by the Company or any Subsidiary after such Asset Disposition;
(5)payments of unassumed liabilities (not constituting Indebtedness) relating to the assets subject to such Asset Disposition at the time of, or within 30 days after, such Asset Disposition; and
(6)with respect to any Asset Disposition involving a disposition of assets of a Foreign Subsidiary and solely to the extent the proceeds have not been applied to reduce Indebtedness, or
make capital or other permitted expenditures or investments in accordance with Section 4.16, the Net Available Cash attributable to such assets of such Foreign Subsidiary to the extent that the repatriation of such Net Available Cash to the Company or any of its Domestic Subsidiaries (i) is prohibited, restricted or delayed by applicable laws, rules or regulations or (ii) could reasonably be expected to result in adverse tax consequences to the Company and its Subsidiaries; provided that the Company will use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any costs to comply with Section 4.16.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock, means the cash proceeds of such issuance or sale, net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually Incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credits or deductions and any tax sharing arrangements).
“New 2L Notes” means the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 issued pursuant to the New 2L Notes Indenture.
“New 2L Notes Collateral Agent” means GLAS Americas LLC in its capacity as the collateral agent under the New 2L Notes Indenture or any successor representative acting in such capacity.
“New 2L Notes Indenture” means that certain indenture, to be dated as of the Issue Date, among the Company, the Guarantors party thereto and the New 2L Notes Trustee and the New 2L Notes Collateral Agent, as amended or supplemented from time to time, relating to the New 2L Notes.
“New 2L Notes Trustee” means U.S. Bank Trust Company, National Association. “Non-ABL Agreement” means the collective reference to (a) the 2025 Notes Indentures
and the New 2L Notes Indenture (each, a “Notes Indenture”), (b) the 2023 Credit Facility, the 2025 Credit
Facility and the Superpriority Credit Facility (each, a “Term Credit Facility”), (c) any Additional Term Debt Agreement (as defined in the ABL Intercreditor Agreement) and (d) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any Indebtedness or other financial accommodation that has been Incurred to extend, replace, refinance or refund in whole or in part the Indebtedness and other obligations outstanding under any Notes Indenture, any Term Credit Facility, any Additional Notes Agreement or any other agreement or instrument referred to in this clause (d) unless such agreement or instrument expressly provides that it is not intended to be and is not a Non-ABL Agreement hereunder. Any reference to the Non-ABL Agreement hereunder shall be deemed a reference to any Non-ABL Agreement then extant.
“Non-ABL Domestic Non-Released Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which (i) constitutes “Collateral” under the 2023 Credit Facility (as in existence on the Issue Date) but (ii) does not constitute “ABL Priority Collateral” under the ABL Facility; provided, that any Non-ABL Domestic Non-Released Collateral that is for any reason after the Issue Date no longer “Collateral” under the 2023 Credit Facility shall be deemed as of such date to be Non-ABL Domestic Released Collateral.
“Non-ABL Domestic Released Collateral” means that portion of the Collateral that is held by the Company or a Domestic Subsidiary and which does not constitute (i) “ABL Priority Collateral” under the ABL Facility nor (ii) “Collateral” under the 2023 Credit Facility (as in existence on the Issue Date).
“Non-ABL Foreign Collateral” means that portion of the Collateral that is held by a Foreign Subsidiary of the Company and which does not constitute “ABL Priority Collateral” under the ABL Facility.
“Non-ABL Priority Collateral” means that portion of the Collateral that is held by the Company or a Guarantor and which does not constitute “ABL Priority Collateral” under the ABL Facility.
“Non-ABL Representative” means each of the Superpriority Credit Facility Collateral Agent, the 2023 Credit Facility Collateral Agent, the 2025 Credit Facility Collateral Agent, the 2025 Notes Collateral Agents, and the New 2L Notes Collateral Agent.
“Non-ABL Secured Indebtedness” means all Obligations other than any ABL Indebtedness that are secured by a Lien on any part of the Collateral.
“Non-Borrower Subsidiary” means any Subsidiary that is not a borrower under any of the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility and the 2023 Credit Facility.
“Non-Guarantor Subsidiary” means any Subsidiary that is not a Guarantor and excludes, for the avoidance of doubt, the Issuer.
“Non-Released Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the Issue Date, by and among the Superpriority Credit Facility Collateral Agent, the Superpriority Credit Facility Administrative Agent, the 2025 Notes Trustees, the 2025 Notes Collateral Agents, the 2025 Credit Facility Administrative Agent, the 2025 Credit Facility Collateral Agent, the 2023 Credit Facility Administrative Agent, the 2023 Credit Facility Collateral Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent, and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented, or replaced, in whole or in part, from time to time.
“Note Documents” means this Indenture, the Notes, any supplemental indenture hereto relating to the addition of Domestic Note Parties, the Collateral Documents and the Intercreditor Agreements (including in each case, any amendments thereto).
“Note Guarantee” means, individually, any Guarantee of payment of the Notes and the Issuer’s other Obligations under this Indenture by a Guarantor pursuant to the terms of this Indenture and any supplemental indenture thereto, and, collectively, all such Guarantees.
“Note Party” means the Issuer, the Company or any Guarantor.
“Notes” means the notes issued under this Indenture and more particularly means any Note authenticated and delivered under this Indenture (including the Existing Notes and the Exchange Notes) and Notes to be issued or authenticated upon transfer, replacement or exchange of Notes.
“Notes Collateral Agent” means GLAS Americas LLC, as notes collateral agent, until a successor, if any, replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, provincial, territorial, federal or foreign law), other monetary obligations, penalties, fees,
indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and Guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Offer to Purchase” means an Asset Disposition Offer or a Change of Control Offer. “Offering Memorandum” means the offering memorandum dated November 28, 2022
related to the offers to exchange existing 2025 Notes for additional 2025 Notes and the solicitation of consents to amend the 2025 Notes Indentures.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Executive Vice President, Senior Vice President or Vice President, the Treasurer or Assistant Treasurer or the Secretary of the Company or, if the Company is a partnership or a limited liability company that has no such officers, a person duly authorized under applicable law by the general partner, managers, members or a similar body to act on behalf of the Company. Officer of any Subsidiary Guarantor has a correlative meaning, and with respect to the Issuer, means a person authorized to represent the Issuer.
“Officer’s Certificate” means a certificate signed by an Officer of the Company, the Issuer or a Subsidiary Guarantor, as applicable, and delivered to the Trustee or the Notes Collateral Agent, as applicable.
“On-Lending” means, without double counting, the aggregate amount of all Loans, advances and/or other proceeds made to any Loan Party and made available by any Loan Party, directly or indirectly, to the Belgian Guarantor or any of its Subsidiaries (in each case, irrespective of whether retained or on-lent by the relevant Belgian Guarantor or its Subsidiary).
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee or the Notes Collateral Agent, as applicable. The counsel may be an employee of or counsel to the Company.
“Original Issue Date” means July 20, 2020.
“Paderborn Property” means the fee-owned real property located at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany.
“Pari Passu Secured Indebtedness” means any Indebtedness of the Company or any Guarantor that ranks pari passu in right of payment with the Obligations under the Notes or the Note Guarantees and is secured by a Lien on the Collateral that has equal Lien priority with respect to the different categories of Collateral under the Lien priorities in any applicable Intercreditor Agreement relative to the Notes and the Note Guarantees (including the Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility and the 2025 U.S. Notes Indenture and 2025 U.S. Notes, as applicable) and is senior in priority to the Liens securing any Junior Lien Indebtedness; provided, that, in each case, an Authorized Representative of such Indebtedness shall have executed a joinder to the applicable Intercreditor Agreements in the form provided therein.
“Perfection Certificate” means that certain perfection certificate dated as of the Issue Date, executed and delivered by each Note Party in favor of the Notes Collateral Agent on behalf of the Secured Parties.
“Permitted Equity Issuance Prepayment” means any repayment, repurchase or redemption of New 2L Notes prior to April 1, 2024, using the Permitted Equity Proceeds Prepayment Amount.
“Permitted Equity Proceeds Prepayment Amount” means Net Cash Proceeds from any Equity Offering subsequent to the Issue Date in an aggregate amount of up to $100.0 million (excluding, for the avoidance of doubt, any Net Cash Proceeds related to the Structuring Premium (as defined in the Transaction Support Agreement)).
“Permitted Investment” means an Investment:
(1)by the Company or any of its Subsidiaries in the Company, the Issuer or a Guarantor (including any Persons that become Guarantors or are merged, amalgamated or consolidated into the Company, the Issuer or a Guarantor as a result of such Investment and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer);
(2)by a Non-Guarantor Subsidiary in a Non-Guarantor Subsidiary (including any Persons that become Non-Guarantor Subsidiaries as a result of such Investment and, in each case, any Investment held by such Person; provided that such Investment was not acquired by such Person in contemplation of such acquisition, merger, amalgamation, consolidation or transfer);
(3)by the Company, the Issuer or a Guarantor in a Non-Guarantor Subsidiary (a) using cash proceeds received on or after October 20, 2022 from one or more Non-Guarantor Subsidiaries or (b) made on or after October 20, 2022 in an aggregate amount outstanding at the time of each such Investment not to exceed $10.0 million (as reduced by the amount of capital returned from any such Permitted Investment (exclusive of items reflected in Consolidated Net Income), which reductions may not exceed in the aggregate amount the amount originally invested);
(4)by the Company or any of its Subsidiaries (a) in cash and Cash Equivalents and
(b) in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany Investments to the Board of Directors of the Company; provided, further that any Investment in respect of cash management operations that exceeds $10.0 million will only be permitted to the extent that the Company reports such Investment to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following such Investment;
(5)by the Company or any of its Subsidiaries in exchange for consideration consisting only of Capital Stock (other than Disqualified Stock) of the Company or Net Cash Proceeds of a substantially concurrent sale of Capital Stock of the Company;
(6)by the Company or any of its Subsidiaries in receivables owing to the Company or any Subsidiary and extensions of trade credit in the ordinary course of business;
(7)by the Company or any of its Subsidiaries in payroll, commission, travel and similar advances to cover matters that are reasonably expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(8)by the Company or any of its Subsidiaries in the form of loans or advances to employees, Officers or directors of the Company or any Subsidiary (i) in the ordinary course of business or (ii) in an aggregate amount not to exceed $5.0 million (including, for the avoidance of doubt, any such Investments existing as of the Issue Date) at any one time outstanding to fund the purchase of Capital Stock of the Company by such persons;
(9)acquired by the Company or any of its Subsidiaries:
(o)as part of the settlement of litigation or arbitration;
(p)in exchange for any other Investment or accounts receivable held by the Company or any such Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the Company of such other Investment or accounts receivable; or
(q)as a result of a foreclosure by the Company or any of its Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(10)by the Company or any of its Subsidiaries as a result of the receipt of settlement of amounts due to the Company or any Subsidiary effected in the ordinary course of business;
(11)by the Company or any of its Subsidiaries as a result of the receipt of non-cash consideration from an Asset Disposition that was made pursuant to and in compliance with Section 4.16 or any other disposition of assets not constituting an Asset Disposition; (12)by the Company or any of its Subsidiaries in existence on the Issue Date or made pursuant to binding commitments existing on the Issue Date or an Investment consisting of any extension, modification or replacement of any such Investment or binding commitment existing on the Issue Date but, in each case, only to the extent not involving additional advances, contributions or other Investments or other increases thereof;
(13)by the Company or any of its Subsidiaries in Currency Agreements, Interest Rate Agreements, Commodity Agreements and related Hedging Obligations, which transactions or obligations are Incurred in compliance with Section 4.09;
(14)by the Company or any of its Subsidiaries in respect of Guarantees issued in accordance with Section 4.09; (15)by the Company or any of its Subsidiaries in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Company and its Subsidiaries in connection with such plans;
(16)by the Company or any of its Subsidiaries, together with all other Investments pursuant to this clause (16), to repay, repurchase, or redeem New 2L Notes issued under the New 2L Notes Indenture, in an aggregate amount at the time of each such Investment not to exceed the Permitted Equity Proceeds Prepayment Amount;
(17)by the Company or any of its Subsidiaries in the ordinary course of business consisting of the licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons; provided that such licensing, subleasing, or contributions of intellectual property must either be (a) non-exclusive or (b) exclusive only within the granted territory;
(18)by the Company or any of its Subsidiaries consisting of cash deposits (including escrowed deposits) pursuant to binding commitments of the Company or its Subsidiaries in effect with respect to refinancings of Indebtedness otherwise permitted under this Indenture;
(19)by the Company or any of its Subsidiaries in prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business;
(20)by the Company or any of its Subsidiaries to the extent constituting Investments, transactions made pursuant to the terms of the China Joint Venture in an aggregate amount at the time of each such Investment not to exceed $100.0 million;
(21)by the Company or any of its Subsidiaries to the extent constituting Investments, transactions made pursuant to the terms of the Wincor Joint Venture in an aggregate amount at the time of each such Investment not to exceed $100.0 million; and
(22)by the Company or any of its Subsidiaries, in cash or in the form of Investments that do not constitute transfers of Collateral, together with all other Investments pursuant to this clause (22), in an aggregate amount outstanding (as reduced by the amount of capital returned from any such Permitted Investment (exclusive of items reflected in Consolidated Net Income), which reductions may not exceed in aggregate amount the amount originally transferred in connection with any Permitted Investment hereunder) at the time of each such Investment not to exceed $35.0 million.
“Permitted Liens” means, with respect to any Person:
(1)Liens securing (x) Indebtedness and other obligations permitted to be Incurred pursuant to Section 4.09(b)(2) and (y) any Refinancing Indebtedness in respect thereof (and any subsequently Incurred Refinancing Indebtedness in respect of any such Refinancing Indebtedness); provided, that the Liens incurred pursuant to this clause (1) shall rank equal to or junior to the Liens securing the Notes pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements (in the case of any Junior Liens, with the Notes being treated as senior priority obligations thereunder), as applicable, in all cases subject to the Lien priorities in any applicable Intercreditor Agreement;
(2)pledges or deposits by such Person under workers’ compensation laws, unemployment insurance laws, social security or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or U.S. government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import or customs duties or for the payment of rent, in each case Incurred in the ordinary course of business;
(3)Liens imposed by law, including carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens, Incurred in the ordinary course of business;
(4)Liens for taxes, assessments or other governmental charges or levies that are not yet overdue for more than 45 days or that are being contested in good faith by appropriate proceedings, provided that appropriate reserves required pursuant to GAAP have been made in respect thereof;
(5)Liens in favor of issuers of surety or performance bonds or letters of credit or bankers’ acceptances or similar obligations (including standby letters of credit and completion guarantees) issued pursuant to the request of and for the account of such Person in the ordinary course of its business; provided, however, that such letters of credit do not constitute Indebtedness;
(6)encumbrances, ground leases, easements or reservations (including reservations in any original grant from any government of any water or mineral rights or interests therein) of, or rights
of others for, licenses, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning, building codes or other restrictions (including, without limitation, minor defects or irregularities in title and similar encumbrances) as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that do not secure any monetary obligations and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(7)Liens securing Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(8)leases, licenses, subleases and sublicenses of assets (including, without limitation, real property and intellectual property rights) that do not materially interfere with the ordinary conduct of the business of the Company or any of its Subsidiaries and do not secure any Indebtedness;
(9)judgment Liens not giving rise to an Event of Default or that secure appeal or surety bonds related to such judgments;
(10)Liens for the purpose of securing the payment of all or a part of the purchase price of, or mortgage financings, purchase money obligations or other payments Incurred to finance assets or property (other than Capital Stock or other Investments) acquired, constructed, improved or leased in the ordinary course of business; provided that:
(r)the aggregate principal amount of Indebtedness secured by such Liens is otherwise permitted to be Incurred under this Indenture and does not exceed the cost of the assets or property so acquired, constructed or improved; and
(s)such Liens are created within 180 days of construction, acquisition or improvement of such assets or property and do not encumber any other assets or property of the Company or any Subsidiary other than such assets or property and assets affixed or appurtenant thereto;
(11)Liens arising solely by virtue of any statutory or common law provisions relating to banker’s Liens, rights of set-off, revocation, refund, chargeback or similar rights and remedies as to deposit accounts or other funds maintained with a depositary institution; provided that:
(t)such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company in excess of those set forth by regulations promulgated by the Federal Reserve Board; and
(u)such deposit account is not intended by the Company or any Subsidiary to provide collateral to the depository institution;
(12)rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by the terms of documents of banks or other financial institutions (i) in relation to the establishment, maintenance or administration of deposit accounts, securities accounts or arrangements relating to a Cash Management Agreement or (ii) in relation to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations Incurred in the ordinary course of business of the Company or any Subsidiary;
(13)Liens in favor of financial institutions against cash pooling arrangements or bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business and consistent with standard business practices in such foreign jurisdiction; provided that any
such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or its Subsidiaries;
(14)Liens in favor of a commodity, brokerage or security intermediary who holds a commodity, brokerage or, as applicable, a security account on behalf of the Company or a Subsidiary provided such Lien encumbers only the related account and the property held therein and relates to the security for the activities associated with such account;
(15)Liens arising from Uniform Commercial Code or PPSA (or similar law of any foreign jurisdiction) financing statement filings or similar public filings, registrations or agreements in foreign jurisdiction regarding leases and consignment or bailee arrangements in the ordinary course of business and Liens securing liabilities in respect of indemnification obligations thereunder as long as each such Lien only encumbers the assets that are the subject of the related lease (or contained in such leasehold) or consignment or bailee, and other precautionary statements, filings or agreements;
(16)Liens existing on the Issue Date (other than Liens permitted under clause (1)) and Liens securing the Superpriority Credit Facility, the 2025 Credit Facility, the New 2L Notes, the 2025
U.S. Notes and the 2023 Credit Facility and other secured obligations permitted to be Incurred under Section 4.09(b)(3), in each case subject to the Lien priorities in any applicable Intercreditor Agreement;
(17)Liens on property or shares of stock of a Person at the time such Person becomes a Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such other Person becoming a Subsidiary; provided, further, however, that any such Lien may not extend to any other property owned by the Company or any Subsidiary;
(18)Liens on property at the time the Company or a Subsidiary acquired the property, including any acquisition by means of a merger, amalgamation or consolidation with or into the Company or any Subsidiary; provided, however, that such Liens are not created, Incurred or assumed in connection with, or in contemplation of, such acquisition; provided, further, however, that such Liens may not extend to any other property owned by the Company or any Subsidiary;
(19)deposits in the ordinary course of business to secure liability to insurance
carriers;
(20)options, put and call arrangements, rights of first refusal and similar rights
relating to Investments in joint ventures, partnerships and the like permitted to be made under this Indenture;
(21)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(22)Liens securing Indebtedness or other obligations of a Subsidiary owing to the Company or another Subsidiary;
(23)[reserved];
(24)Liens securing Refinancing Indebtedness Incurred to refinance as a whole or in part, Indebtedness that was previously so secured pursuant to clauses (10), (16), (17) and (18) and this clause (24) of this definition; provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the
Indebtedness being refinanced; provided, further, that any such Liens shall rank equal to or junior to the Liens securing Indebtedness being refinanced or Incurred in compliance with this Indenture pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements (in the case of any Junior Liens, with any ABL Indebtedness and the Notes being treated as senior priority obligations thereunder), as applicable, in all cases subject to the Lien priorities in any applicable Intercreditor Agreement;
(25)any interest or title of a lessor under any Capitalized Lease Obligation or
operating lease;
(26)Liens in favor of the Company or any Subsidiary;
(27)Liens in favor of customs and revenues authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods in the ordinary course of business;
(28)[reserved];
(29)[reserved];
(30)Liens on assets and property of Non-Guarantor Subsidiaries that are Foreign Subsidiaries that secure Indebtedness and other obligations of Non-Guarantor Subsidiaries that are Foreign Subsidiaries in an aggregate amount at any time outstanding not to exceed $10.0 million;
(31)[reserved];
(32)Liens on assets of the Company or any of its Subsidiaries securing Indebtedness and other Obligations and related Hedging Obligations and related banking services or cash management obligations that were Incurred pursuant to Section 4.09(b)(1); provided, that such Liens shall be junior to the Liens on the ABL Non-Priority Collateral securing the Notes shall be subject to the ABL Intercreditor Agreement;
(33)Liens on cash or Cash Equivalents or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(34)Liens on the collateral in respect of the 2025 Credit Facility (or any other applicable credit facility) securing obligations in respect of any Bi-lateral LC/WC Agreement permitted to be Incurred under Section 4.09(b)(22); and (35)Liens securing Indebtedness in an aggregate principal amount outstanding at any one time not to exceed $25.0 million; provided, that (a) the aggregate principal amount of any Liens Incurred hereunder securing any funded Indebtedness outstanding at any one time shall not exceed $10.0 million and (b) any such Liens securing any funded Indebtedness shall rank junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility, and the 2025 Notes pursuant to the terms of the applicable Intercreditor Agreements, or any other intercreditor agreement that is substantially similar to such Intercreditor Agreements, as applicable.
“Person” means any individual, corporation, limited liability company, unlimited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Polish Collateral Agreements” means the collateral agreements governed by Polish law set forth on Appendix C hereof.
“Polish Collateral Documents” means the Polish Collateral Agreements and each mortgage (hipoteka), assignment (cesja), transfer of title by way of security (przewłaszczenie na zabezpieczenie), pledge (zastawy), suretyship (poręczenie), guarantee (gwarancja), letter of credit (akredytywa), promissory note (weksel własny), bill of exchange (weksel trasowany), right of set-off (prawo potrącenia), title retention (prawo zatrzymania), right of first refusal (prawo pierwokupu, prawo pierwszeństwa), power of attorney by way of security (pełnomocnictwo na zabezpieczenie), accession to debt (przystąpienie do długu), submission to execution (poddanie się egzekucji) or any other agreement, security interest, encumbrance or arrangement having the effect of security or granting a security or giving security or preferential ranking to a creditor, as applicable, governed by Polish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Polish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Polish Guarantor” means any Guarantor organized or incorporated in Poland. “PPSA” means the Personal Property Security Act (Ontario), including the regulations
and Minister’s orders thereto, provided that if perfection or the effect of perfection or non-perfection or the priority of any Lien created under the Collateral Documents on the Collateral is governed by the personal property security legislation or other applicable legislation with respect to personal property security in effect in a jurisdiction in Canada other than the Province of Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including the Civil Code of Quebec) in effect from time to time in such other jurisdiction in Canada for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“Preferred Stock,” as applied to the Capital Stock of any corporation, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends, or as to the distributions of assets upon any voluntary or involuntary liquidation or dissolution of such corporation, over shares of Capital Stock of any other class of such corporation.
“Priority Secured Indebtedness” means the Obligations under each of the ABL Facility and the Superpriority Credit Facility, in each case, solely to the extent secured by a Lien on any part of the Collateral, which Lien is senior in priority to the Lien securing the Notes or the Note Guarantees on such part of the Collateral.
“Pro Forma Test Conditions” means, if on the date of a transaction or series of transactions and after giving effect thereto on a pro forma basis, (1) the Consolidated Coverage Ratio for the Company and its Subsidiaries is at least 2.00 to 1.00 and (2) no Default or Event of Default will have occurred or be continuing or would occur as a consequence of Incurring any Indebtedness in connection with entering into such transaction(s).
“Purchased Entities” means Wincor Nixdorf and its Subsidiaries.
“Rating Agency” means each of S&P and Moody’s, or, if S&P or Moody’s or both shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by a resolution of the Board of Directors) which shall be substituted for S&P or Moody’s or both, as the case may be.
“Record Date” for the interest payable on any applicable Interest Payment Date means the January 1 or July 1 (whether or not a Business Day) immediately preceding such Interest Payment Date.
“Refinancing Indebtedness” means Indebtedness that is Incurred in exchange or replacement for, or to refund, refinance, replace, exchange, renew, repay, prepay, purchase, redeem defease, retire or extend (including pursuant to any defeasance or discharge mechanism) (collectively, “refinance,” “refinances,” “refinanced” and “refinancing” shall each have a correlative meaning) any Indebtedness existing on the Issue Date or Incurred in compliance with this Indenture (including additional Indebtedness Incurred to pay premiums (including tender premiums), defeasance costs, accrued interest and fees and expenses (including fees and expenses relating to the Incurrence of such Refinancing Indebtedness) in connection with any such refinancing) including Indebtedness that refinances Refinancing Indebtedness or Incurred in connection with a repurchase, redemption or similar transaction, whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case including by exchange offers and private exchanges; provided, however, that:
(1)(a) if the Stated Maturity of the Indebtedness being refinanced is earlier than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity no earlier than the Stated Maturity of the Indebtedness being refinanced or (b) if the Stated Maturity of the Indebtedness being refinanced is later than the Stated Maturity of the Notes, the Refinancing Indebtedness has a Stated Maturity later than the Stated Maturity of the Notes;
(2)the Refinancing Indebtedness has an Average Life at the time such Refinancing Indebtedness is Incurred that is equal to or greater than the Average Life of the Indebtedness being refinanced;
(3)such Refinancing Indebtedness is Incurred in an aggregate principal amount (or if issued with original issue discount, an aggregate issue price) that is equal to or less than the sum of the aggregate principal amount (or if issued with original issue discount, the aggregate accreted value) then outstanding of the Indebtedness being refinanced (plus, without duplication, any additional Indebtedness Incurred to pay premiums required by the instruments governing such existing Indebtedness or tender premiums, defeasance costs, accrued interest and fees and expenses in connection with any such refinancing);
(4)if the Indebtedness being refinanced is subordinated in right of payment to the Notes or the Note Guarantees, such Refinancing Indebtedness is subordinated in right of payment to the Notes or the Note Guarantees on terms at least as favorable to the Holders as those contained in the documentation governing the Indebtedness being refinanced;
(5)if the Indebtedness being refinanced is secured, the Liens securing such Refinancing Indebtedness have a Lien priority equal or junior to the Liens securing the Indebtedness being refinanced (and, if the Indebtedness being refinanced is unsecured, the Refinancing Indebtedness Incurred in respect of such Indebtedness may not be secured with any Liens);
(6)Refinancing Indebtedness shall not include Indebtedness of a Non-Guarantor Subsidiary that refinances Indebtedness of the Company, the Issuer or a Guarantor; and
(7)Refinancing Indebtedness shall not be Guaranteed or secured by additional guarantors or collateral, respectively, relative to the refinanced Indebtedness.
“Released Domestic Collateral” means the ABL Priority Domestic Collateral and the Non-ABL Domestic Released Collateral.
“Required Account” means (A) all deposit accounts or securities accounts of the Domestic Note Parties and the Canadian Note Parties, excluding any Foreign Subsidiary (other than any Subsidiaries incorporated, formed or otherwise organized under the laws of Canada or a province or
territory thereof), other than (i) accounts having a de minimis balance; provided that the aggregate balance in all accounts excluded by this de minimis threshold shall not exceed $2,500,000 at any time, (ii) payroll, disbursement and other fiduciary accounts, (iii) zero balance disbursement account, (iv) other trust, escrow, customs and fiduciary accounts, (v) cash collateral accounts solely holding cash collateral upon which Liens permitted by Section 4.10 exist and (vi) tax accounts, including, without limitation, sales tax accounts and (B) all deposit accounts and securities accounts that are subject to control agreements in favor of the ABL Collateral Agent.
“Required Superpriority Lenders” has the meaning assigned to it in the Superpriority
Credit Facility.
“Required Noteholders” means Holders of a majority in principal amount of the Notes
then outstanding.
“Requirement of Law” means as to any Person, the certificate of incorporation and by- laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other governmental authority, in each case applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Responsible Officer” shall mean, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Restricted Investment” means any Investment other than a Permitted Investment. “S&P” means Standard & Poor’s Ratings Services or any successor to its rating agency business.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness of the Company or any of its
Subsidiaries secured by a Lien.
“Secured Parties” means the Trustee, the Notes Collateral Agent, the Holders and each other Person who is owed any portion of the Obligations under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Security Agreement” means the New York law governed security agreement among the Issuer, the Company, the other Guarantors and the Notes Collateral Agent in form and substance reasonably satisfactory to the Notes Collateral Agent.
“Significant Subsidiary” means any Subsidiary that would be a “Significant Subsidiary” of the Company within the meaning of Rule 1-02 under Regulation S-X promulgated by the SEC.
“Similar Business” means any business similar in nature to any business conducted or proposed to be conducted by the Company and its Subsidiaries on the Issue Date or any business that is reasonably related, complementary, incidental or ancillary thereto or a reasonable extension, development or expansion of, the business conducted by the Company and its Subsidiaries on the Issue Date, in each case, as determined in good faith by the Company.
“Spanish Collateral Agreements” means the collateral agreements governed by Spanish law set forth on Appendix C hereof.
“Spanish Collateral Documents” means the Spanish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Spanish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations which may be entered into from time to time for the benefit of all the Secured Parties identified therein; provided that each Spanish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Specified Foreign Subsidiary” means each Subsidiary domiciled or organized in a Specified Jurisdiction.
“Specified Intercompany Claims” means collectively, (i) that certain intercompany claim owed by Diebold Germany to the Company (the amount of which, as of the Issue Date, is approximately
€656,000,000.00) and (ii) that certain intercompany claim owed by Diebold Germany to the Issuer (the amount of which, as of the Issue Date, is approximately €343,000,000.00).
“Specified Jurisdiction” means any of Belgium, Canada, France, Germany, Italy, the Netherlands, Poland, Spain, Sweden and England and Wales.
“Stated Maturity” means, with respect to any security, the date specified in the agreement governing or certificate relating to such Indebtedness as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but not including any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Stub Obligations” means any 2024 Notes or Obligations under the 2023 Credit Facility. “Subordinated Obligation” means any Indebtedness of the Issuer (whether outstanding on
the Issue Date or thereafter Incurred) that is subordinated or junior in right of payment to the Notes pursuant to its terms.
“Subsidiary” of any Person means (1) any corporation, unlimited liability company, association or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total ordinary voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof (or Persons performing similar functions) or (2) any partnership, joint venture limited liability company or similar entity of which more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, is, in the case of clauses (1) and (2), at the time owned or controlled, directly or indirectly, by
(a) such Person, (b) such Person and one or more Subsidiaries of such Person or (c) one or more Subsidiaries of such Person. Unless otherwise specified herein, each reference to a Subsidiary will refer to a Subsidiary of the Company.
“Subsidiary Guarantor” means any Subsidiary of the Company that is a Guarantor.
“Superpriority Credit Facility” means that certain credit agreement, to be dated on or around the Issue Date, among Diebold Germany, the guarantors parties thereto from time to time, the Superpriority Credit Facility Administrative Agent, the Superpriority Credit Facility Collateral Agent and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time (including increasing the amount loaned thereunder).
“Superpriority Credit Facility Administrative Agent” means GLAS USA LLC in its capacity as the administrative agent under the Superpriority Credit Facility, or any successor representative acting in such capacity.
“Superpriority Credit Facility Collateral Agent” means GLAS Americas LLC in its capacity as the collateral agent under the Superpriority Credit Facility, or any successor representative acting in such capacity.
“Superpriority Credit Facility Obligations” means the “Obligations” as defined in the Superpriority Credit Facility.
“Swedish Collateral Agreements” means the collateral agreements governed by Swedish law set forth on Appendix C hereof.
“Swedish Collateral Documents” means the Swedish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Swedish law in connection with this Indenture and the Agreed Security Principles to secure any of the Obligations; provided that each Swedish Collateral Document shall be in form and substance acceptable to the Notes Collateral Agent.
“Transaction Support Agreement” means that certain transaction support agreement, dated as of October 20, 2022, by and among the Company, certain of its Subsidiaries and certain holders of its existing Indebtedness (together with all exhibits, annexes and schedules thereto, and as amended, restated, supplemented or replaced, in whole or in part, from time to time).
“Transfer Restricted Notes” means Definitive Notes and any other Notes that bear or are required to bear the Restricted Notes Legend.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended. “Trustee” means U.S. Bank Trust Company, National Association, as trustee, until a
successor, if any, replaces it in accordance with the applicable provisions of this Indenture and thereafter means the successor serving hereunder.
“Uniform Commercial Code”or “UCC” means the Uniform Commercial Code as in effect from time to time in any applicable jurisdiction.
“United States” means the United States of America.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30)
of the Code.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then
outstanding and normally entitled to vote in the election of directors, managers or trustees, as applicable, of such Person.
“Wholly Owned Subsidiary” means a Subsidiary, all of the Capital Stock of which (other than directors’ qualifying shares or a de minimis amount of shares held by Affiliates) is owned by the Company or another Wholly Owned Subsidiary regardless of Affiliate ownership status.
“Wincor Joint Venture” means any single joint venture that may be entered into by one or more of the Purchased Entities.
“Wincor Nixdorf” means Wincor Nixdorf Aktiengesellschaft. “Wincor Nixdorf Shares” means the Capital Stock of Wincor Nixdorf.
Section 1.02 Other Definitions.
| | | | | |
| Term | Defined in Section |
“2024 Exchange Offer” ........................................................................................... | 4.18(a) |
“Additional Amounts” ............................................................................................. | 4.19(a) |
“Affiliate Transaction” ............................................................................................. | |
“Agent Members” ..................................................................................................... | 2.1(c) of Appendix A |
“Applicable Event” .................................................................................................. | 6(b) of Appendix B |
“Applicable Procedures” ........................................................................................ | 1.1(a) of Appendix A |
“Asset Disposition Offer” ........................................................................................ | 4.16(c) |
“Asset Disposition Offer Amount” ........................................................................... | |
“Asset Disposition Offer Period” ............................................................................. | |
“Asset Disposition Proceeds” ................................................................................. | 4.16(b) |
“Asset Disposition Purchase Date” ......................................................................... | |
“Auditor’s Determination” ...................................................................................... | 10.02(a) |
“Authentication Order” ............................................................................................ | |
“balance sheet date” ............................................................................................... | 1.01 |
“Bondholder Call” ................................................................................................... | 4.06(c) |
“Carryover Amount” ................................................................................................ | 4.08(b)(7) |
“Capital Impairment” ............................................................................................. | 10.02(a) |
“Change of Control Offer” ...................................................................................... | 4.15(a) |
“Change of Control Payment” ................................................................................. | |
“Change of Control Payment Date” ........................................................................ | |
“Chargor” ............................................................................................................... | 6(e)(ii) of Appendix B |
“Corresponding Debt” ............................................................................................ | 13.20(b) |
“Covenant Defeasance” ........................................................................................... | 8.03(a) |
“Definitive Notes Legend” ....................................................................................... | 2.2(e)(i) of Appendix A |
“Distribution Compliance Period” .......................................................................... | 1.1(a) of Appendix A |
“Enforcement of Claims” ........................................................................................ | 10.02(a) |
“ERISA Legend”....................................................................................................... | 2.2(e)(i) of Appendix A |
“Event of Default” .................................................................................................... | 6.01(a) |
“Excess Proceeds” ................................................................................................... | |
“Exchange Notes” ................................................................................................... | Recitals |
“Expiration Date” .................................................................................................... | 1.05(j) |
“FATCA” ................................................................................................................. | 4.19(b) |
“Foreign Guarantor Jurisdiction” .......................................................................... | 4(a) of Appendix B |
“Foreign Note Party” .............................................................................................. | 1(a) of Appendix B |
“Global Note” .......................................................................................................... | 2.1(b) of Appendix A |
“Global Notes Legend” ............................................................................................ | 2.2(e)(i) of Appendix A |
“Group” ................................................................................................................... | 13(a) of Appendix B |
| | | | | |
| Term | Defined in Section |
“Guaranteed Obligor” ............................................................................................ | 10.02(b)(ii)(2) |
“Guaranteed Obligations” ...................................................................................... | 10.01(a) |
“IAI” ........................................................................................................................ | 1.1(a) of Appendix A |
“IAI Global Note” ................................................................................................... | 2.1(b) of Appendix A |
“IAI Notes” .............................................................................................................. | 2.1(a) of Appendix A |
“Legal Defeasance” ................................................................................................. | 8.02(a) |
“Management Notification” .................................................................................... | 10.02(a) |
“Non-Cooperative Jurisdiction” ............................................................................. | 4.19(a)(8) |
“Non-U.S. Taxing Jurisdiction” .............................................................................. | 4.19(b) |
“Note Register” ........................................................................................................ | 2.03(a) |
“OID Legend” ......................................................................................................... | 2.2(e)(i) of Appendix A |
“Overriding Principle” ........................................................................................... | 4(b) of Appendix B |
“Original Indenture” ............................................................................................... | Recitals |
“Parallel Debt” ....................................................................................................... | 13.20(a) |
“Parallel Debt Undertaking” .................................................................................. | 13.20(a) |
“Paying Agent” ........................................................................................................ | 2.03(a) |
“PDF” ..................................................................................................................... | 13.16 |
“Premises” .............................................................................................................. | 11.06(a) |
“Principal Paying Agent” ....................................................................................... | 2.03(a) |
“Principal Registrar” .............................................................................................. | 2.03(a) |
“Proceeds Trigger Date” ........................................................................................ | 4.16(b) |
“QIB” ...................................................................................................................... | 1.1(a) of Appendix A |
“Registered Exchange Offer” | 4.18(a) |
“Registrar” ............................................................................................................... | 2.03(a) |
“Regulation S” ......................................................................................................... | 1.1(a) of Appendix A |
“Regulation S Global Note” .................................................................................... | 2.1(b) of Appendix A |
“Regulation S Notes” .............................................................................................. | 2.1(a) of Appendix A |
“Reinstatement Date” .............................................................................................. | 4.17(b) |
“Relevant Asset” ...................................................................................................... | 10.02(a) |
“Required Holder Consent” .................................................................................... | 6(e)(ii) of Appendix B |
“Restricted Notes Legend” ....................................................................................... | 2.2(e) of Appendix A |
“Restricted Payment” ............................................................................................... | |
“Rule 144” ............................................................................................................... | 1.1(a) of Appendix A |
“Rule 144A” ............................................................................................................ | 1.1(a) of Appendix A |
“Rule 144A Global Note” ........................................................................................ | 2.1(b) of Appendix A |
“Rule 144A Notes” .................................................................................................. | 2.1(a) of Appendix A |
“Spain” ..................................................................................................................... | 1.08(b)(i) |
“Spanish Civil Code” ............................................................................................... | 1.08(b)(ii) |
“Spanish Civil Procedural Law”.............................................................................. | 1.08(b)(iii) |
“Spanish Commercial Code” ................................................................................... | 1.08(b)(iv) |
“Spanish Companies Law”....................................................................................... | 1.08(b)(v) |
“Spanish Guarantor” ............................................................................................... | 1.08(b)(vi) |
“Spanish Insolvency Law”........................................................................................ | 1.08(b)(vii) |
“Spanish Public Document” .................................................................................... | 1.08(b)(viii) |
| | | | | |
“Suspended Covenants” .......................................................................................... | 4.17(a) |
“Suspension Date” .................................................................................................. | 4.17(a) |
“Suspension Period” ............................................................................................... | 4.17(b) |
“Taxes” .................................................................................................................... | 4.19(b) |
“Transfer Agent” ..................................................................................................... | 2.03(a) |
| | | | | |
| Term | Defined in Section |
“United States”......................................................................................................... | 1.1(a) of Appendix A |
“Unrestricted Global Note” ..................................................................................... | 1.1(a) of Appendix A |
“U.S. person” .......................................................................................................... | 1.01 of Appendix A |
Section 1.03 Rules of Construction.
Unless the context otherwise requires:
therein;
(2)an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3)“or” is not exclusive;
(4)words in the singular include the plural, and words in the plural include the singular;
(5)provisions apply to successive events and transactions;
(6)unless the context otherwise requires, any reference to an “Appendix,” “Article,” “Section,” “clause,” “Schedule” or “Exhibit” refers to an Appendix, Article, Section, clause, Schedule or Exhibit, as the case may be, of this Indenture;
(7)the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not any particular Article, Section, clause or other subdivision;
(8)“including” means including without limitation;
(9)references to sections of, or rules under, the Securities Act or the Exchange Act shall be deemed to include substitute, replacement or successor sections or rules adopted by the SEC from time to time;
(10)unless otherwise provided, references to agreements and other instruments shall be deemed to include all amendments and other modifications to such agreements or instruments, but only to the extent such amendments and other modifications are not prohibited by the terms of this Indenture; and
(11)in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Issuer may classify such transaction as it, in its sole discretion, determines.
Section 1.04 Acts of Holders.
(v)Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer and the Guarantors. Proof of execution of any such instrument
or of a writing appointing any such agent, or the holding by any Person of a Note, shall be sufficient for any purpose of this Indenture and (subject to Section 7.01) conclusive in favor of the Trustee, the Issuer and the Guarantors, if made in the manner provided in this Section 1.04. (w)The fact and date of the execution by any Person of any such instrument or writing may be proved (1) by the affidavit of a witness of such execution or by the certificate of any notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him or her the execution thereof or (2) in any other manner deemed reasonably sufficient by the Trustee. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute proof of the authority of the Person executing the same.
(x)The ownership of Notes shall be proved by the Note Register.
(y)Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Note shall bind every future Holder of the same Note and the Holder of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, in respect of any action taken, suffered or omitted by the Trustee, the Issuer or the Guarantors in reliance thereon, whether or not notation of such action is made upon such Note.
(z)The Issuer may set a record date for purposes of determining the identity of Holders entitled to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, or to vote on or consent to any action authorized or permitted to be taken by Holders; provided that the Issuer may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in clause (f) below. Unless otherwise specified, if not set by the Issuer prior to the first solicitation of a Holder made by any Person in respect of any such action, or in the case of any such vote, prior to such vote, any such record date shall be the later of 30 days prior to the first solicitation of such consent or vote or the date of the most recent list of Holders furnished to the Trustee prior to such solicitation or vote. If any record date is set pursuant to this clause (e), the Holders on such record date, and only such Holders, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action (including revocation of any action), whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes, or each affected Holder, as applicable, on such record date. Promptly after any record date is set pursuant to this paragraph, the Issuer, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder in the manner set forth in Section 13.02.
(aa)The Trustee may set any day as a record date for the purpose of determining the Holders entitled to join in the giving or making of (1) any notice of default under Section 6.01, (2) any declaration of acceleration referred to in Section 6.02, (3) any direction referred to in Section 6.05 or (4) any request to pursue a remedy as permitted in Section 6.06. If any record date is set pursuant to this paragraph, the Holders on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Notes or each affected Holder, as applicable, on such record date. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Issuer’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Issuer and to each Holder in the manner set forth in Section 13.02.
(ab)Without limiting the foregoing, a Holder entitled to take any action hereunder with regard to any particular Note may do so with regard to all or any part of the principal amount of such Note or by one or more duly appointed agents, each of which may do so pursuant to such appointment with regard to all or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different part.
(ac)Without limiting the generality of the foregoing, a Holder, including a Common Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Common Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Common Depositary’s standing instructions and customary practices.
(ad)The Issuer may fix a record date for the purpose of determining the Persons who are beneficial owners of interests in any Global Note held by a Common Depositary entitled under the procedures of such Common Depositary, if any, to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders; provided that if such a record date is fixed, only the beneficial owners of interests in such Global Note on such record date or their duly appointed proxy or proxies shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such beneficial owners remain beneficial owners of interests in such Global Note after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be effective hereunder unless made, given or taken on or prior to the applicable Expiration Date.
(ae)With respect to any record date set pursuant to this Section 1.04, the party hereto that sets such record date may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Notes in the manner set forth in Section 13.02, on or prior to both the existing and the new Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.04, the party hereto which set such record date shall be deemed to have initially designated the 30th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this clause (j).
Section 1.05 Quebec Interpretive Provisions.
For purposes of the interpretation or construction of this Indenture pursuant to the laws of the Province of Quebec, for purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Collateral Document) and for all other purposes pursuant to which the interpretation or construction of any other Collateral Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, a “reservation of ownership”, “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the PPSA shall be deemed to include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a
“right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs in favour of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”,
(p) “easement” shall be deemed to include “servitude”, (q) “priority” shall be deemed to include “prior claim” or “rank”, as applicable, (r) “survey” shall be deemed to include “certificate of location and plan”,
(s) “fee simple title” and “fee title” shall be deemed to include “right of ownership”, (t) “foreclosure” shall be deemed to include “the exercise of a hypothecary right”, (u) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (v) “lease” for personal or movable property shall be deemed to include a “contract of leasing (crédit-bail)” and (x) “deposit account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Quebec.
Section 1.06 French Terms.
In this Indenture, where it relates to a French Guarantor:
(a)“gross negligence” means “faute lourde”;
(b)a “guarantee” means any type of “sûreté personnelle”;
(c)“merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code;
(d)“security interest” includes any type of security (sûreté réelle) and transfer by
way of security;
(e)a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f)“trustee, fiduciary and fiduciary duty” has in each case the meaning given to such
term under any applicable law;
(g)“willful misconduct” means “dol”;
(h)a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code;
(i)a “suspension of payments,” a “moratorium of any indebtedness,” a “winding- up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code;
(j)a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(k)a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refer to, any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur” or similar officer; and
(l)a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
Section 1.07 Spanish Terms and Definitions.
(a)In this Indenture, where it relates to a Spanish Guarantor, a person incorporated or formed or having its center of main interests in Spain, or to Spanish law, a reference to:
(1)“administration” or “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including without limitation (i) a declaración de concurso necesario o voluntario, as well as any filing for voluntary insolvency (solicitud de inicio del procedimiento de concurso voluntario), the request of declaration of insolvency by a third party (solicitud de concurso por acreedores), a declaration of insolvency (auto de declaración de concurso); (ii) any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, and any petition to appoint a restructuring expert pursuant to articles 672 et seq.; and (iii) a judicial or out-of-court composition agreement (convenio judicial o extrajudicial con acreedores or transacción judicial o extrajudicial) or any filing for a workout homologation petition (solicitud de homologación de un plan de reestructuración). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law;
(2)“control” has the meaning stated under article 42 of the Spanish Commercial Code.
(3)“financial assistance” means (a) in respect to a Spanish Guarantor incorporated as a Sociedad Anónima, financial assistance under Article 150 of the Spanish Companies Law; and (b) in respect to a Spanish Guarantor incorporated as a Sociedad de Responsabilidad Limitada, financial assistance under Article 143 of the Spanish Companies Law;
(4)“winding up”, “liquidation” or “dissolution” includes, without limitation, disolución, liquidación or any other similar proceedings and shall be used to those circumstances as regulated under the laws of Spain from time to time;
(5)a “liquidator”, “receiver”, “administrative receiver”, “administrator” or “compulsory manager” includes, without limitation, mediador conrursal, administrador del concurso, administración concursal or a liquidador or any other person or entity performing the same or a similar function;
(6)a “composition” or “arrangement” or similar arrangement with any creditor includes, without limitation, a convenio de acreedores or plan de reestructuración to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under Title II or Title III of the Second Book of the Spanish Insolvency Law;
(7)a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem security right governed by Spanish law; and
(8)a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).
(b)In this Indenture, the following terms shall have the following definitions:
(9)“Spain” shall mean the Kingdom of Spain.
(10)“Spanish Civil Code” shall mean the Spanish Código Civil, as amended from time to time.
(11)“Spanish Civil Procedural Law” shall mean Law 1/2000 of 7 January (Ley de Enjuiciamiento Civil), as amended from time to time.
(12)“Spanish Commercial Code” shall mean the Spanish Commercial Code published by virtue of the Royal Decree of 22 August 1885 (Real decreto de 22 de agosto de 1885 por el que se publica el Código de Comercio), as amended from time to time.
(13)“Spanish Companies Law” shall mean the Royal Legislative Decree 1/2010, of 2 July, whereby the companies act is approved (Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital), as amended from time to time.
(14)“Spanish Guarantor” means any Guarantor incorporated under the laws
of Spain.
(15)“Spanish Insolvency Law” means the Spanish Royal Legislative Decree
1/2020 of 5 May 2020 (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal) approving the Spanish Recast Insolvency Law, as amended or superseded from time to time, and, in particular but not limited to, pursuant to the Spanish Law 16/2022, of 5 September, amending the consolidated text of the Spanish Insolvency Law (Ley 16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal).
(16)“Spanish Public Document” shall mean a Spanish law notarial deed (documento público), being either an escritura pública or a póliza o efecto intervenido por notario español.
Section 1.08 Dutch Terms
As used in this Indenture, where it relates to the Issuer or a Dutch Guarantor, a reference to: (i) organizational documents means the deed of incorporation (akte van oprichting), articles of association (statuten) and an extract of the Dutch Chamber of Commerce (Kamer van Koophandel); (ii) a necessary corporate or other organizational action where applicable includes without limitation: (A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and (B) obtaining a positive or neutral advice, which, if conditional, contains conditions which in the opinion of the Trustee are acceptable and can reasonably be expected to be satisfied by the Issuer or a Dutch Guarantor without breaching the terms of this Indenture, from the competent works council(s); (iii) any Lien and any security interest includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (zakelijk recht) created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); (iv) a bankruptcy, insolvency, liquidation, winding up, or dissolution (and any of those terms) includes a Dutch
entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (v) a moratorium includes (voorlopige) surseance van betaling and granted a moratorium includes (voorlopige) surseance verleend;
(vi) a trustee, includes a curator and a liquidator includes a curator; (vii) an administrator includes a bewindvoerder, a beoogd bewinvoerder, a herstructureringsdeskundige or an observator; (viii) a receiver or an administrative receiver does not include a curator or bewindvoerder; (ix) any “procedure or step” taken in connection with insolvency proceedings includes the Issuer or a Dutch Guarantor having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); (x) an attachment includes a beslag, (xi) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur); (xii) a reorganization includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet); (xiii) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur) and (xiv) a “subsidiary” includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code (Burgerlijk Wetboek). Where “the Netherlands” or “Dutch” is referred to it refers only to the European part of the Kingdom of the Netherlands and its laws respectively.
Section 1.09 Swedish Terms.
Notwithstanding and overriding any other provision of this Indenture and/or any exhibit or schedule thereto:
(a)any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent;
(b)for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Swedish Collateral Document, assign a proportionate part of the security interests granted under that Swedish Collateral Document together with a proportional part of the security interest in that Swedish Collateral Document;
(c)any security granted under a Swedish Collateral Document will be granted to the secured parties represented by the Notes Collateral Agent;
(d)a “compromise” or “composition” with any creditor includes (a) any write-down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (b) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”);
(e)a “receiver”, “trustee” or “liquidator” includes (a) ‘rekonstruktör’ under the Swedish Company Reorganisation Act, (b) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (c) ‘likvidator’ under the Swedish Companies Act;
(f)a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any ‘delning’ implemented in accordance with Chapter 24 of the Swedish Companies Act;
(g)a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a ‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act;
(h)“gross negligence” means ‘grov vårdslöshet’ under Swedish law;
(i)a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates;
(j)an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act;
(k)in relation to this Indenture, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the Swedish Companies Act;
Notwithstanding any other provisions in this Indenture, the release of any perfected Liens (or any Liens purported to be perfected) created by a Swedish Collateral Document (“Swedish Collateral”) will always be subject to the prior written consent of the Notes Collateral Agent (acting in its sole discretion but in accordance with the applicable Swedish Collateral Document and Note Document). Each Secured Party authorizes and directs the Notes Collateral Agent to release Swedish Collateral as provided in Section 11.07 of this Agreement (but in accordance with the applicable Swedish Collateral Document) without notification or further reference to the Secured Parties. This provision supersedes any conflicting provision in this Indenture.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating; Terms.
(a)Provisions relating to the Existing Notes, the Exchange Notes and any other Notes issued under this Indenture are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture. The Notes and the Trustee’s certificate of authentication shall each be substantially in the form of Exhibit A hereto, which is hereby incorporated in and expressly made a part of this Indenture. The Notes may have notations, legends or endorsements required by law, rules or agreements with national securities exchanges to which the Issuer or any Guarantor is subject, if any, or usage (provided that any such notation, legend or endorsement is in a form acceptable to the Issuer).
Each Note shall be dated the date of its authentication. The Notes shall be in denominations of €2,000 and integral multiples of €1,000 in excess thereof.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and the Issuer, the Company, the Subsidiary Guarantors, the Trustee and the Notes Collateral Agent, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
The Notes shall be subject to repurchase by the Issuer pursuant to an Asset Disposition Offer as provided in Section 4.16 or a Change of Control Offer as provided in Section 4.15, and otherwise as not prohibited by this Indenture. The Notes shall not be redeemable, other than as provided in ARTICLE 3.
The Exchange Notes constitute Additional Notes. No Additional Notes other than the Exchange Notes issued on the Issue Date shall be issued under this Indenture.
Section 2.02 Execution and Authentication.
(a)At least one Officer shall execute the Notes on behalf of the Issuer by manual, electronic or facsimile signature. If an Officer whose signature is on a Note no longer holds that office or is no longer authorized to represent the Issuer at the time a Note is authenticated, the Note shall nevertheless be valid.
(b)A Note shall not be entitled to any benefit under this Indenture or be valid or obligatory for any purpose until authenticated substantially in the form of Exhibit A attached hereto by the manual, electronic or facsimile signature of an authorized signatory of the Trustee. The signature shall be conclusive evidence that the Note has been duly authenticated and delivered under this Indenture.
(c)On the Issue Date, the Trustee shall, upon receipt of a written order of the Issuer signed by an Officer (an “Authentication Order”), authenticate and deliver the Exchange Notes.
(d)The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with Holders, the Issuer or an Affiliate of the Issuer.
(e)The Trustee shall authenticate and make available for delivery upon a written order of the Issuer signed by one Officer of the Issuer (1) Exchange Notes for original issue on the Issue Date and (2) any Unrestricted Global Notes issued in exchange for Existing Notes or Exchange Notes in accordance with this Indenture. Such order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Exchange Notes or Unrestricted Global Notes.
Section 2.03 Registrar and Paying Agent.
(a)The Issuer shall maintain at least one office or agency outside of the United Kingdom where Notes may be presented for registration of transfer or for exchange (each, a “Registrar”), one of which shall be designated as the “Principal Registrar”), at least one office or agency where Notes may be presented for payment (each, a “Paying Agent”), including in the City of London (the “Principal Paying Agent”), and shall appoint one or more transfer agents for the Notes (each, a “Transfer Agent”). The Principal Registrar shall keep a register of the Notes (“Note Register”) and of their transfer and exchange. The Issuer may appoint one or more co-registrars and one or more additional paying agents for the Notes. The term “Registrar” includes the Principal Registrar and any co-registrar, and the term “Paying Agent” includes the Principal Paying Agent and any additional paying agent. The Issuer may change any Paying Agent, Transfer Agent or Registrar for the Notes without prior notice to any Holder; provided that, anything herein notwithstanding, the Principal Registrar and each co-registrar, if any, must be outside the United Kingdom. The Issuer shall notify the Trustee in writing of the name and address of any Agent not a party to this Indenture. If the Issuer fails to appoint or maintain another entity as Registrar, Transfer Agent or Paying Agent, the Trustee shall act as Paying Agent or Transfer Agent, as applicable, and, if applicable, shall appoint a Registrar reasonably acceptable to the Issuer, so long as such Registrar is outside the United Kingdom. The Issuer, the Company or any of its Subsidiaries may act as Paying Agent, Transfer Agent or Registrar. For so long as the Notes are listed on the Official List of the Exchange and the rules of the Exchange so require, the Issuer will file a notice of any change of Paying Agent, Registrar or Transfer Agent in accordance with the requirements of such rules.
(b)The Issuer initially appoints Elavon Financial Services DAC to act as Common Depositary, Paying Agent, Transfer Agent and Registrar for the Notes and Elavon Financial Services DAC accepts such appointment.
(c)In no event may the Issuer appoint a Paying Agent in any member state of the European Union where the Paying Agent would be obliged to withhold or deduct taxes in connection with any payment made by it in relation to the Notes unless the Paying Agent would be so obliged if it were located in all other member states.
(d)Neither the Trustee nor any Agent shall have responsibility or liability for actions taken or not taken by the Common Depositary.
Section 2.04 Paying Agent to Hold Money.
The Issuer shall, no later than 11:00 a.m. (London time) on each due date for the payment of principal, premium, if any, and interest on any of the Notes, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held for the Holders entitled to the same, and (unless such Paying Agent is the Trustee) the Issuer shall promptly notify the Trustee of its action or failure so to act. Subject to actual receipt of such funds as provided by this Section 2.04 by the Paying Agent, the Paying Agent shall make payments on the Notes to the Holders entitled thereto on such date and in accordance with the provisions of this Indenture and the Notes. The Issuer shall require each Paying Agent other than the Trustee to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal, premium, if any, and interest on the Notes, and shall notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee and to account for any funds disbursed by the Paying Agent. Upon payment over to the Trustee, and upon accounting for any funds disbursed, a Paying Agent shall have no further liability for the money. If the Issuer, the Company or a Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders all money held by it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating to the Issuer, the Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Registrar shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders, together with the principal amount of Notes held by each such Holder and the aggregate principal amount of Notes outstanding. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least two Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.
Section 2.06 Transfer and Exchange.
(a)The Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and in compliance with Appendix A.
(b)To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order in accordance with Section 2.02 or at the Registrar’s request. (c)No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07), but the Holders shall be required to pay any
transfer tax or similar governmental charge payable in connection therewith (other than any transfer taxes or similar governmental charges payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.15, 4.16 or 9.05).
(d)All Global Notes and Definitive Notes issued upon any registration of transfer or exchange of Global Notes or Definitive Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of transfer or exchange.
(e)Neither the Issuer nor the Registrar shall be required (1) to issue, to register the transfer of or to exchange any Note during a period beginning at the opening of business 15 days before the day of any selection of Notes for redemption under Section 3.02 and ending at the close of business on the day of selection, (2) to register the transfer of or to exchange any Note so selected for redemption, or tendered for repurchase (and not withdrawn) in connection with a Change of Control Offer or an Asset Disposition Offer, in whole or in part, except the unredeemed or unpurchased portion of any Note being redeemed or repurchased in part or (3) to register the transfer of or to exchange any Note between a Record Date and the next succeeding Interest Payment Date.
(f)Prior to due presentment for the registration of a transfer of any Note, the Trustee, any Agent and the Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and (subject to the Record Date provisions of the Notes) interest on such Notes and for all other purposes, and none of the Trustee, any Agent or the Issuer shall be affected by notice to the contrary.
(g)Upon surrender for registration of transfer of any Note at the office or agency of the Issuer designated pursuant to Section 4.02, the Issuer shall execute, and the Trustee shall authenticate and mail, in the name of the designated transferee or transferees, one or more replacement Notes of any authorized denomination or denominations of a like aggregate principal amount.
(h)At the option of the Holder, Notes may be exchanged for other Notes of any authorized denomination or denominations of a like aggregate principal amount upon surrender of the Notes to be exchanged at such office or agency. Whenever any Global Notes or Definitive Notes are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the replacement Global Notes or Definitive Notes which the Holder making the exchange is entitled to in accordance with the provisions of Appendix A so long as the requirements of this Indenture are satisfied.
(i)All certifications, certificates and Opinions of Counsel required to be submitted to the Registrar pursuant to this Section 2.06 to effect a registration of transfer or exchange may be submitted by mail or by facsimile or electronic transmission.
Section 2.07 Replacement Notes.
(a)If a mutilated Note is surrendered to the Trustee or any Registrar or Transfer Agent or if a Holder claims that its Note has been lost, destroyed or wrongfully taken and the Trustee receives evidence to its satisfaction of the ownership and loss, destruction or theft of such Note, the Issuer shall issue and the Trustee, upon receipt of an Authentication Order, shall authenticate a replacement Note if the Trustee’s reasonable requirements are otherwise met. If required by the Trustee, any Registrar or Transfer Agent or the Issuer, an indemnity bond must be provided by the Holder that is sufficient in the judgment of the Trustee, any such Registrar or Transfer Agent and the Issuer to protect the Issuer, the Trustee, any Agent and any authenticating agent from any loss that any of them may suffer if a Note is replaced. The Issuer may charge the Holder for the expenses of the Issuer and the Trustee (including reasonable respective fees and expenses of counsel) in replacing a Note. Every replacement Note is a
contractual obligation of the Issuer and shall be entitled to all of the benefits of this Indenture equally and proportionately with all other Notes duly issued hereunder. Notwithstanding the foregoing provisions of this Section 2.07(a), in case any mutilated, lost, destroyed or wrongfully taken Note has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Note, pay such Note. Upon the issuance of any replacement Note under this Section 2.07, the Issuer may require the amount of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the reasonable fees and expenses of counsel and the Trustee) in connection therewith.
(b)The provisions of this Section 2.07 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes. Section 2.08 Outstanding Notes.
(a)The Notes outstanding at any time are all the Notes authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those paid pursuant to Section 2.07, those reductions in the interest in a Global Note effected by the Trustee in accordance with the provisions hereof, those described in this Section 2.08 as not outstanding and those that are subject to Legal Defeasance or Covenant Defeasance as provided in ARTICLE 8. Except as set forth in Section 2.09, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
(b)If a Note is replaced pursuant to Section 2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser, as such term is defined in Section 8-303 of the Uniform Commercial Code in effect in the State of New York.
(c)If the principal amount of any Note is considered paid under Section 4.01, it ceases to be outstanding and interest on it ceases to accrue from and after the date of such payment.
(d)If a Paying Agent (other than the Issuer, the Company, a Subsidiary or an Affiliate of any thereof) holds, on the maturity date, any redemption date or any date of purchase pursuant to an Offer to Purchase, money sufficient to pay Notes payable or to be redeemed or purchased on that date, then on and after that date such Notes shall be deemed to be no longer outstanding and shall cease to accrue interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the requisite principal amount of Notes have concurred in any direction, waiver or consent, Notes beneficially owned by the Issuer, or by any Affiliate of the Issuer, shall be considered as though not outstanding, except that for the purposes of determining whether the Trustee shall be protected in actually relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee knows are so owned shall be so disregarded. Notes so owned that have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not the Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may prepare and the Trustee, upon receipt of an Authentication Order, shall authenticate temporary Notes. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate
for temporary Notes and as shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare and the Trustee shall authenticate definitive Notes in exchange for temporary Notes. Holders and beneficial holders, as the case may be, of temporary Notes shall be entitled to all of the benefits accorded to Holders, or beneficial holders, respectively, of Notes under this Indenture.
Section 2.11 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent and any Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee or, at the direction of the Trustee, the Registrar or the Paying Agent or any Transfer Agent and no one else shall cancel all Notes surrendered for registration of transfer, exchange, payment, replacement or cancellation and shall dispose of cancelled Notes in accordance with its customary procedures (subject to the record retention requirement of the Exchange Act, if applicable). Evidence of the disposal of all cancelled Notes shall, upon the written request of the Issuer, be delivered to the Issuer. The Issuer may not issue new Notes to replace Notes that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
(a)If the Issuer defaults in a payment of interest on the Notes, it shall pay the defaulted interest in any lawful manner plus, to the extent lawful, interest payable on the defaulted interest, to the Persons who are Holders on a subsequent special record date, in each case at the rate provided in the Notes and in Section 4.01. The Issuer shall notify the Trustee in writing (which notice may be electronic) of the amount of defaulted interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such defaulted interest or shall make arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such defaulted interest as provided in this Section 2.12. The Trustee shall fix or cause to be fixed each such special record date and payment date; provided that no such special record date shall be less than 10 days prior to the related payment date for such defaulted interest. The Trustee shall promptly notify the Issuer of such special record date. At least 15 days before the special record date, the Issuer (or, upon the written request of the Issuer, the Trustee in the name and at the expense of the Issuer) shall send, mail or deliver by electronic transmission in accordance with the Applicable Procedures, or cause to be sent, mailed or delivered by electronic transmission in accordance with the Applicable Procedures to each Holder a notice that states the special record date, the related payment date and the amount of such interest to be paid. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine the defaulted interest, or with respect to the nature, extent or calculation of the amount of defaulted interest owed, or with respect to the method employed in such calculation of the defaulted interest.
(b)Subject to the foregoing provisions of this Section 2.12 and for greater certainty, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue interest, which were carried by such other Note.
Section 2.13 Common Code and ISIN Numbers.
The Issuer in issuing the Notes may use Common Codes or ISIN numbers (if then generally in use) and, if so, the Trustee and the Agents shall use Common Codes or ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of redemption or exchange or in Offers to Purchase and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption or exchange or Offer to Purchase shall not be affected by any defect in or omission of such numbers. The Issuer shall promptly notify the Trustee and the Agents in writing (which notice may be electronic) of any change in the Common Codes or ISIN numbers.
Section 2.14 Currency.
Euro is the sole currency of account and payment for all sums payable by the Issuer under or in connection with the Notes, including damages. Any amount received or recovered in a currency other than euro, whether as a result of, or the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or otherwise by any Holder or by the Trustee, in respect of any sum expressed to be due to it from the Issuer will only constitute a discharge to the Issuer to the extent of the euro amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so).
If that euro amount is less than the euro amount expressed to be due to the recipient or the Trustee under any Note, the Issuer will indemnify them against any loss sustained by such recipient as a result. In any event, the Issuer will indemnify the recipient against the cost of making any such purchase. For the purposes of this Section 2.14, it will be prima facie evidence of the matter stated therein for the Holder of a Note or the Trustee to certify in a manner reasonably satisfactory to the Issuer (indicating the sources of information used and including a certification, receipt or account statement from the financial institution or foreign exchange agent effecting such currency exchange indicating the financial terms of such currency exchange) the loss it Incurred in making any such purchase. To the fullest extent permitted by applicable law, these indemnities constitute a separate and independent obligation from the Issuer’s other obligations, will give rise to a separate and independent cause of action, will apply irrespective of any waiver granted by any Holder of a Note or the Trustee (other than a waiver of the indemnities set out herein) and will continue in full force and effect despite any other judgment, order, claim or proof for a liquidated amount in respect of any sum due under any Note or to the Trustee.
Section 2.15 Agents.
(a)The rights, powers, duties and obligations and actions of each Agent under this Indenture are several and not joint. The Agents shall only be obliged to perform the duties set out in this Indenture and shall have no implied duties.
(b)The Agents shall act solely as agents of the Issuer and shall not be agents of the
Holders.
(c)Anything in this Indenture to the contrary notwithstanding, so long as the Notes
are in the form of Global Notes, any obligation the Trustee or the Agents may have to publish a notice to Holders on behalf of the Issuer shall be met upon delivery of the notice to the relevant clearing system.
(d)Upon the written request of any Agent, the Issuer shall provide to such Agent a certified list of the Issuer’s authorized signatories.
Section 2.16 Italian Usury Law
(a)The rate of interest applicable to each issuance of the Notes guaranteed by the Italian Guarantor under this Indenture (including the relevant component of any applicable fee and
expense) determined as of the date of execution of this Indenture is considered in good faith by each of the parties to be in compliance with Law No. 108 of 7 March 1996 as amended (the "Italian Usury Law")
(b)In any event, if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest applicable to any issuance of the Notes guaranteed by the Italian Guarantor or the default rate of interest (if due at such time from the Italian Guarantor) at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the obligations of the Italian Guarantor, as guarantor and payor of the relevant interest rate or default rate, shall immediately be reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not.
ARTICLE 3
REDEMPTION
Section 3.01 Notices to Trustee.
If the Issuer elects to redeem Notes pursuant to Section 3.07 or Section 3.09, it shall furnish to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to Section 3.03 (unless a shorter notice shall be agreed to by the Trustee) but not more than 60 days before a redemption date, an Officer’s Certificate (which may be withdrawn prior to the date such notice of redemption is given) setting forth (1) the paragraph or subparagraph of such Note or Section of this Indenture pursuant to which the redemption shall occur, (2) the redemption date, (3) the principal amount of the Notes to be redeemed and (4) the redemption price, if then ascertainable.
Notwithstanding the notice requirements in Section 3.03, if the redemption price is not known at the time such notice is to be given, the actual redemption price, calculated as described in the terms of the Notes to be redeemed, shall be set forth in an Officer’s Certificate of the Issuer delivered to the Trustee no later than two Business Days prior to the redemption date.
Section 3.02 Selection of Notes to Be Redeemed or Purchased.
(a)If less than all of the Notes are to be redeemed pursuant to Section 3.07 or purchased in an Offer to Purchase at any time, the Trustee shall select the Notes to be redeemed or purchased in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed as certified to the Registrar by the Issuer, in compliance with the requirements of Euroclear or Clearstream or, if the Notes are not so listed or such exchange prescribes no method of selection and the Notes are not held through Euroclear or Clearstream, or Euroclear or Clearstream prescribe no method of selection, on a pro rata basis or by use of a pool factor; provided, however, that no Note or beneficial interest in the Notes of €2,000 in aggregate principal amount or less shall be redeemed or purchased in part and Notes and beneficial interests therein shall be redeemed only in integral multiples of €1,000. The Trustee shall not be liable for any selections made by it in accordance with this Section 3.02.
(b)The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption or purchase and, in the case of any Note selected for partial redemption or purchase, the principal amount thereof to be redeemed or purchased. Notes and portions of Notes selected shall be in amounts of €2,000 and integral multiples of €1,000 in excess thereof; provided that no Notes of €2,000 in principal amount or less shall be redeemed or purchased in part. Except as provided in the preceding sentence, provisions of this Indenture that apply to Notes called for redemption or purchase also apply to portions of Notes called for redemption or purchase.
(c)After the redemption date or purchase date, upon surrender of a Note to be redeemed or purchased in part only, a new Note or Notes in principal amount equal to the unredeemed or unpurchased portion of the original Note, representing the same Indebtedness to the extent not redeemed or not purchased, shall be issued in the name of the Holder upon cancellation of the original Note (or appropriate book entries shall be made to reflect such partial redemption).
Section 3.03 Notice of Redemption.
(a)Subject to Section 3.10, the Issuer shall send or deliver by electronic transmission in accordance with the Applicable Procedures, or cause to be sent (or delivered by electronic transmission in accordance with the Applicable Procedures) notices of redemption of Notes not less than 15 days but not more than 60 days before the redemption date to each Holder whose Notes are to be redeemed pursuant to this ARTICLE 3 at such Holder’s registered address or otherwise in accordance with the Applicable Procedures, except that redemption notices may be sent more than 60 days prior to a redemption date if the notice is issued in connection with ARTICLE 8 or ARTICLE 12. Except as set forth in Section 3.07(f), notices of redemption may not be conditional. Notices to the Trustee may be given by email in PDF format.
(b)The notice shall identify the Notes to be redeemed (including Common Code and ISIN number, if applicable) and shall state:
(17)the redemption date;
(18)the redemption price, including the portion thereof representing any accrued and unpaid interest; provided that in connection with a redemption under Section 3.07(d), the notice need not set forth the redemption price but only the manner of calculation;
(19)if any Note is to be redeemed in part only, the portion of the principal amount of that Note that is to be redeemed;
(20)the name and address of the Paying Agent;
(21)that Notes called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(22)that, unless the Issuer defaults in making such redemption payment or the Paying Agent is prohibited from making such payment pursuant to the terms of this Indenture, interest on Notes called for redemption ceases to accrue on and after the redemption date;
(23)the paragraph or subparagraph of the Notes or Section of this Indenture pursuant to which the Notes called for redemption are being redeemed;
(24)that no representation is made as to the correctness or accuracy of the Common Code or ISIN number, if any, listed in such notice or printed on the Notes; and
(25)if applicable, any condition to such redemption.
(c)At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s name and at the Issuer’s expense; provided that the Issuer shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be sent or caused to be sent to Holders pursuant to this Section 3.03 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s
Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in Section 3.03(b).
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is sent in accordance with Section 3.03, Notes called for redemption become irrevocably due and payable on the redemption date at the redemption price (except as provided for in Section 3.07(f)). The notice, if sent in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice or any defect in the notice to the Holder of any Note designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Note. Subject to Section 3.05, on and after the redemption date, interest ceases to accrue on Notes or portions of Notes called for redemption.
Section 3.05 Deposit of Redemption or Purchase Price.
(a)No later than 11:00 a.m. (London time) on the redemption or purchase date (or such later time as such date to which the Trustee may reasonably agree), the Issuer shall deposit with the Paying Agent money sufficient to pay the redemption or purchase price of and accrued and unpaid interest on all Notes to be redeemed or purchased on that date. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest shall be paid to the Holder of record on such Record Date. The Paying Agent shall promptly distribute to each Holder whose Notes are to be redeemed or repurchased the applicable redemption or purchase price thereof and accrued and unpaid interest thereon. The Trustee or the Paying Agent shall promptly return to the Issuer any money deposited with the Trustee or the Paying Agent by the Issuer in excess of the amounts necessary to pay the redemption or purchase price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
(b)If the Issuer complies with the provisions of Section 3.05(a), on and after the redemption or purchase date, interest shall cease to accrue on the Notes or the portions of Notes called for redemption or purchase whether or not such Notes are presented for payment, and the Holders of such Notes shall have no further rights with respect to such Notes except the right to receive such payment of the redemption price and accrued and unpaid interest, if any, on such Notes upon surrender of such Notes. If a Note is redeemed or purchased on or after a Record Date but on or prior to the related Interest Payment Date, then any accrued and unpaid interest to the redemption or purchase date in respect of such Note will be paid on such redemption or purchase date to the Person in whose name such Note is registered at the close of business on such Record Date, and no additional interest shall be payable to Holders whose Notes shall be subject to redemption by the Issuer. If any Note called for redemption or purchase shall not be so paid upon surrender for redemption or purchase because of the failure of the Issuer to comply with Section 3.05(a), interest shall be paid on the unpaid principal, from the redemption or purchase date until such principal is paid, and, to the extent lawful, on any interest accrued to the redemption or purchase date not paid on such unpaid principal, in each case at the rate provided in the Notes and in Section 4.01.
Section 3.06 Notes Redeemed or Purchased in Part.
Upon surrender and cancellation of a Note that is redeemed or purchased in part, the Issuer shall issue and, upon receipt of an Authentication Order, the Trustee shall promptly authenticate and mail to the Holder (or cause to be transferred by book entry) at the expense of the Issuer a new Note equal in principal amount to the unredeemed or unpurchased portion of the Note surrendered representing the same Indebtedness to the extent not redeemed or purchased; provided that each new Note shall be in a principal amount of €2,000 and integral multiples of €1,000 in excess thereof. It is understood that,
notwithstanding anything in this Indenture to the contrary, only an Authentication Order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Note.
Section 3.07 Optional Redemption.
(a)[reserved].
(b)[reserved].
(c)[reserved].
(d)The Issuer may, on any one or more occasions, redeem the Notes, in whole or in part, upon notice pursuant to Section 3.03 at the redemption prices (expressed as a percentage of principal amount of the Notes to be redeemed) set forth below plus accrued and unpaid interest on the Notes, if any, to, but excluding, the applicable date of redemption, if redeemed during the twelve-month period beginning on July 15 of each of the years indicated below:
| | | | | | | | |
| Year | | Percentage |
2022 .................................................................................. | | 104.500% |
2023 .................................................................................. | | 102.250% |
2024 and thereafter ........................................................... | | 100.000% |
(f)Any redemption notice in connection with this Section 3.07 may, at the Issuer’s discretion, be subject to one or more conditions precedent, including completion of an Equity Offering or other corporate transaction. If such redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Issuer’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date, or by the redemption date so delayed.
(g)The Issuer may acquire Notes by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture.
Section 3.08 Mandatory Redemption.
The Issuer will not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.
Section 3.09 Tax Redemption.
(a)The Notes will be redeemable at any time, at the option of the Issuer, in whole but not in part, upon not less than 15 nor more than 60 days’ prior notice mailed or otherwise sent to each Holder in accordance with the Applicable Procedures, at a redemption price equal to 100% of the outstanding principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the redemption date, only if:
(26)the Issuer or any Guarantor would be obligated to pay any Additional Amounts with respect to the Notes as a result of any change in, or amendment to, the laws or regulations of any Non-U.S. Taxing Jurisdiction or any change in, or a pronouncement by competent authorities of any Non-U.S. Taxing Jurisdiction with respect to, the official application or official interpretation of such laws or regulations, which change, amendment or pronouncement occurs after the Issue Date (or, in the case of any Taxes imposed by the jurisdiction of a Paying Agent, after the date of appointment of such Paying Agent) or, in the case that the Issuer or any Guarantor, as applicable, merges with or into, or sells, conveys, transfers or leases all or substantially all of its assets to, another Person and any Taxes are imposed or levied by or on behalf of the Non-U.S. Taxing Jurisdiction (other than the original Non-U.S. Taxing Jurisdiction of the Issuer or any Guarantor, as applicable) in which such successor entity is incorporated or resident for tax purposes, after the date of such merger, sale, conveyance, transfer or lease, provided, for the avoidance of doubt, that for purposes of this Section 3.09, the Dutch Withholding Tax Act (Wet bronbelasting 2021) and any amendment or supplement thereto is not considered to be a change in, or amendment to, the laws or regulations of a Non-U.S. Taxing Jurisdiction, or any change in, or a pronouncement by competent authorities of any Non-U.S. Taxing Jurisdiction with respect to, the official application or official interpretation of such laws or regulations; and
(27)the Issuer or any Guarantor, in its reasonable judgment, determines that such obligation cannot be avoided by the Issuer or any Guarantor taking reasonable measures available to it, and that in the case of an obligation of a Guarantor to pay any Additional Amounts, the relevant payment could not have been made by the Issuer or another Guarantor without the obligation to pay such Additional Amounts; provided that, for this purpose, reasonable measures will not include any change in the Issuer’s or any Guarantor’s jurisdiction of organization or location of principal executive office, or the incurrence of material out-of-pocket expenses by the Issuer or any Guarantor. For the avoidance of doubt, reasonable measures will include a change in the jurisdiction of a Paying Agent, provided, however, that such change shall not require the Issuer or any Guarantor to incur material additional costs or legal or regulatory burdens.
(b)No notice of redemption shall be given earlier than 60 days prior to the earliest date on which the Issuer or any Guarantor would be obligated to pay such Additional Amounts if a payment in respect of the Notes were then due.
(c)Prior to the publication or mailing of any notice of redemption of the Notes, the Issuer must deliver to the Trustee an Officer’s Certificate confirming that it is entitled to exercise such right of redemption. The Issuer will also deliver an opinion of legal counsel of recognized standing stating that the Issuer or any Guarantor would be obligated to pay such Additional Amounts due to the changes in tax laws or regulations or changes in, or pronouncements with respect to, the official application or official interpretation of such laws or regulations. The Trustee shall accept this certificate and opinion as sufficient evidence of the satisfaction of the conditions precedent set forth in Section 3.09(a) above, in which event it will be conclusive and binding on the Holders.
Section 3.10 Offers to Repurchase by Application of Excess Proceeds.
(a)In the event that, pursuant to Section 4.16, the Issuer is required to commence an Asset Disposition Offer, the Issuer will follow the procedures specified below.
(b)The Asset Disposition Offer will remain open for a period of 20 Business Days following its commencement, except to the extent that a longer period is required by applicable law (the “Asset Disposition Offer Period”). No later than five Business Days after the termination of the Asset
Disposition Offer Period (the “Asset Disposition Purchase Date”), the Issuer will apply all Excess Proceeds to the purchase of the aggregate principal amount of Notes and, if applicable, any applicable Priority Secured Indebtedness and other Pari Passu Secured Indebtedness (on a pro rata basis, if applicable) required to be offered for purchase pursuant to Section 4.16 (the “Asset Disposition Offer Amount”) or, if less than the Asset Disposition Offer Amount of Notes has been so validly tendered, all Notes and Priority Secured Indebtedness and Pari Passu Secured Indebtedness validly tendered in response to the Asset Disposition Offer. Payment for any Notes so purchased will be made in the same manner as interest payments on the Notes are made.
(c)If the Asset Disposition Purchase Date is on or after a Record Date and on or before the related Interest Payment Date, any accrued and unpaid interest to, but excluding, the Asset Disposition Purchase Date shall be paid, in cash, on the Asset Disposition Purchase Date to the Person in whose name a Note is registered at the close of business on such Record Date. Unless the Issuer defaults in the payment of the purchase price for Notes accepted by the Issuer for purchase pursuant to this Section 3.10, interest will cease to accrue on the Notes or portions thereof purchased on the Asset Disposition Purchase Date.
(d)Upon the commencement of an Asset Disposition Offer, the Issuer shall send a notice to each of the Holders or otherwise deliver such notice in accordance with the Applicable Procedures, with a copy to the Trustee. The notice shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Disposition Offer. The Asset Disposition Offer shall be made to all Holders and, if required, all holders of Pari Passu Secured Indebtedness. The notice, which shall govern the terms of the Asset Disposition Offer, shall state:
(28)that an Asset Disposition Offer is being made pursuant to this Section 3.10 and Section 4.16 and the expiration time of the Asset Disposition Offer Period;
(29)the Asset Disposition Offer Amount, the purchase price, including the portion thereof representing any accrued and unpaid interest, and the Asset Disposition Purchase Date;
(30)that Notes must be tendered in integral multiples of €1,000, and any Note not properly tendered will remain outstanding and will continue to accrue interest;
(31)that, unless the Issuer defaults in making the payment, any Note accepted for payment pursuant to the Asset Disposition Offer will cease to accrue interest on and after the Asset Disposition Purchase Date;
(32)that Holders electing to have a Note purchased pursuant to any Asset Disposition Offer shall be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to such Note completed, the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Disposition Purchase Date;
(33)that Holders shall be entitled to withdraw their election if the Issuer, the Common Depositary or the Paying Agent, as the case may be, receives at the address specified in the notice, not later than the expiration of the Asset Disposition Offer Period, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Notes the Holder tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Note purchased;
(34)that, if the aggregate principal amount of Notes and Pari Passu Secured Indebtedness surrendered by the holders thereof exceeds the Asset Disposition Offer Amount,
then the Notes and such Pari Passu Secured Indebtedness will be purchased on a pro rata basis based on the aggregate accreted value or principal amount, as applicable, of the Notes or such Pari Passu Secured Indebtedness tendered and the selection of the Notes for purchase shall be made by the Trustee by such method as the Trustee in its sole discretion shall deem to be fair and appropriate, although no Note having a principal amount of €2,000 shall be purchased in part;
(35)that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) (the unpurchased portion of the Notes must be equal to €2,000 and integral multiples of €1,000 in excess thereof);
(36)the other procedures, as determined by the Issuer, consistent with this Section 3.10 that a Holder must follow; and
(37)the Common Code and ISIN numbers of the Notes.
(e)On or before the Asset Disposition Purchase Date, the Issuer will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary or as otherwise provided in Section 4.16(c), the Asset Disposition Offer Amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) or portions thereof validly tendered and not properly withdrawn pursuant to the Asset Disposition Offer, or, if less than the Asset Disposition Offer Amount has been validly tendered and not properly withdrawn, all Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) so tendered, in the case of the Notes in integral multiples of €1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than €2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is €2,000. The Issuer will deliver, or cause to be delivered, to the Trustee the Notes so accepted and to the Trustee and the Paying Agent an Officer’s Certificate stating the aggregate principal amount of Notes so accepted and that such Notes were accepted for payment by the Issuer in accordance with the terms of this Section 3.10. In addition, the Issuer will deliver all certificates and instruments required, if any, by the agreements governing the Priority Secured Indebtedness and Pari Passu Secured Indebtedness, as applicable.
(f)The Paying Agent or the Issuer, as the case may be, will promptly, but in no event later than five Business Days after termination of the Asset Disposition Offer Period, mail (or otherwise send in accordance with the Applicable Procedures) to each tendering Holder or holder or lender of Priority Secured Indebtedness or Pari Passu Secured Indebtedness, as the case may be, an amount equal to the purchase price of the Notes or Priority Secured Indebtedness or Pari Passu Secured Indebtedness so validly tendered and not validly withdrawn by such holder or lender, as the case may be, and accepted by the Issuer for purchase, and the Issuer will promptly issue a new Note, and the Trustee, upon delivery of an Authentication Order from the Issuer, will authenticate and mail (or otherwise send in accordance with the Applicable Procedures) (or cause to be transferred by book entry) such new Note to such Holder (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate shall be required for the Trustee to authenticate and mail or send such new Note) in a principal amount equal to any unpurchased portion of the Note surrendered; provided that each such new Note will be in a principal amount of €2,000 and integral multiples of €1,000 in excess thereof. In addition, the Issuer will take any and all other actions required by the agreements governing the Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable). Any Note not so accepted will be promptly mailed or sent by the Issuer to the Holder thereof.
(g)The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the
repurchase of Notes pursuant to an Asset Disposition Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of any conflict.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
(a)The Issuer will pay, or cause to be paid, the principal, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. Principal, premium, if any, and interest shall be considered paid on the date due if the Paying Agent, if other than the Issuer, the Company or a Subsidiary of the Company, holds as of 11:00 a.m. (London time), on the due date money deposited by the Issuer in immediately available funds and designated for and sufficient to pay the principal, premium, if any, and interest then due.
(b)The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue principal and premium, if any, at the rate equal to the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue installments of interest (without regard to any applicable grace period) at the same rate to the extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Issuer shall maintain an office or agency (which may be an office of the Trustee or an Affiliate of the Trustee, Registrar, any Transfer Agent or any co-registrar) where Notes may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Issuer and the Guarantors in respect of the Notes and this Indenture may be served. The Issuer shall give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate additional offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 4.03 Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments and governmental levies except (a) such as are being contested in good faith and by appropriate negotiations or proceedings and for which adequate reserves have been made in accordance with GAAP or (b) where the failure to effect such payment is not adverse in any material respect to the Holders.
Section 4.04 Stay, Extension and Usury Laws.
The Company, the Issuer and each Subsidiary Guarantor covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company, the Issuer and each Subsidiary Guarantor (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenant that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but shall suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.05 Corporate Existence.
Subject to ARTICLE 5, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (a) its corporate existence and the corporate, partnership, limited liability company or other existence of each of its Subsidiaries, in accordance with the respective organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary and (b) the rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries; provided that the Company shall not be required to preserve any such right, license or franchise, or the corporate, partnership, limited liability company, unlimited liability company or other existence of any of its Subsidiaries, if the Company in good faith shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries, taken as a whole; provided further that this Section 4.05 does not prohibit any transaction otherwise permitted by Section 4.16 (or that does not constitute an Asset Disposition).
Section 4.06 Reports and Other Information.
(a)Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act or otherwise report on an annual and quarterly basis on forms provided for such annual and quarterly reporting pursuant to the rules and regulations promulgated by the SEC, the Company will file with the SEC within the time periods specified in the SEC’s rules and regulations that are then applicable to the Company (or if the Company is not then subject to the reporting requirements of the Exchange Act, then deliver to the Trustee for delivery to the Holders in lieu of filing with the SEC) within the time periods for filing applicable to a filer that is not an “accelerated filer” as defined in such rules and regulations) (in either case, including any extension as would be permitted by Rule 12b-25 under the Exchange Act):
(38)all financial information that would be required to be contained in an annual report on Form 10-K, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and a report on the annual financial statements by the Company’s independent registered public accounting firm;
(39)all financial information that would be required to be contained in a quarterly report on Form 10-Q, or any successor or comparable form, filed with the SEC, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section; and
(40)all current reports that would be required to be filed with the SEC on Form 8-K, or any successor or comparable form, if the Company were required to file such reports,
in each case in a manner that complies in all material respects with the requirements specified in such form provided, however, that the Trustee shall have no responsibility whatsoever to determine if such filing has occurred.
(b)Notwithstanding Section 4.06(a), (i) the Company will not be obligated to file such reports with the SEC if the SEC does not permit such filing, so long as the Company provides such information to the Trustee and the Holders and makes available such information to prospective purchasers of the Notes, in each case at the Company’s expense and by the applicable date the Company would be required to file such information pursuant to Section 4.06(a) and (ii) the Company will not be obligated to provide to the Trustee or the Holders or make available to prospective purchasers of the Notes any materials for which it has sought and received confidential treatment by the SEC. In addition, to the extent not satisfied by the foregoing, for so long as any Notes are outstanding, the Company will furnish to Holders and to securities analysts and prospective purchasers of the Notes, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. The requirements set forth in Sections 4.06(a) and 4.06(b) may be satisfied by delivering such information to the Trustee and posting copies of such information on a website (which may be nonpublic and may be maintained by the Company or a third party) to which access will be given to Holders and prospective purchasers of the Notes; provided that the Trustee shall have no responsibility to determine if such posting has occurred. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
(c)In addition, no later than five Business Days after the date the annual and quarterly financial information for the prior fiscal period have been filed or furnished pursuant to Section 4.06(a)(1) or (2), the Company shall also hold live quarterly conference calls with the opportunity to ask questions of management for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions (any such call, a “Bondholder Call”); provided that, so long as the Company holds quarterly conference calls for investors of its Common Stock, it shall not be required to hold separate or additional Bondholder Calls. If the Company holds any Bondholder Call, no fewer than five calendar days prior to the date such Bondholder Call is to be held, the Company shall issue a press release to the appropriate U.S. wire services announcing such Bondholder Call for the benefit of the Trustee, the Holders, beneficial owners of the Notes, prospective purchasers of the Notes, securities analysts and market making financial institutions, which press release shall contain the time and the date of such Bondholder Call and direct the recipients thereof to contact an individual at the Company (for whom contact information shall be provided in such notice) to obtain information on how to access such Bondholder Call.
(d)The Company shall also make available copies of all reports required by this Section 4.06 at the offices of the Paying Agent in London or, to the extent and in the manner permitted by the rules of the Exchange, post such reports on the official website of the Exchange.
Section 4.07 Compliance Certificate.
(a)The Issuer, the Company and each Subsidiary Guarantor will deliver to the Trustee, within 120 days after the end of each fiscal year ending after the Original Issue Date, a certificate from its principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company, the Issuer and each Subsidiary Guarantor have kept, observed, performed and fulfilled their obligations under
this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge, the Company, the Issuer and each Subsidiary Guarantor have kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if a Default shall have occurred, describing all such Defaults of which he or she may have knowledge and what action the Company, the Issuer and each Subsidiary Guarantor are taking or propose to take with respect thereto).
(b)When any Default has occurred and is continuing under this Indenture, or if the Trustee or the holder of any other evidence of Indebtedness of the Company or any Subsidiary gives any notice or takes any other action with respect to a claimed Default, the Issuer will promptly (which shall be within ten Business Days following the date on which the Issuer becomes aware of such Default, receives notice of such Default or becomes aware of such action, as applicable) send to the Trustee an Officer’s Certificate specifying such event, its status and what action the Issuer is taking or proposes to take with respect thereof.
Section 4.08 Limitation on Restricted Payments.
(a)The Company will not, and will not permit any of its Subsidiaries, directly or
indirectly, to:
(41)declare or pay any dividend or make any distribution (whether made in
cash, securities or other property) on or in respect of its or any of its Subsidiaries’ Capital Stock (including any payment in connection with any merger, amalgamation or consolidation involving the Company or any of its Subsidiaries) other than:
(A)dividends or distributions payable solely in Capital Stock of the Company (other than Disqualified Stock); and
(B)dividends or distributions by a Subsidiary to the Company or another Subsidiary (including by a Subsidiary that is not a Wholly Owned Subsidiary); provided that with respect to a dividend or distribution to either (a) a Subsidiary, the Capital Stock of which is not 100% pledged as Collateral, or (b) a Non-Guarantor Subsidiary, such transferee Subsidiary shall receive no more than such Subsidiary’s ratable share of such dividend or distribution;
(42)purchase, redeem, retire or otherwise acquire for value, including in connection with any merger, amalgamation or consolidation, any Capital Stock of the Company or any direct or indirect parent of the Company held by Persons other than the Company or a Subsidiary;
(43)make any principal payment on, or purchase, repurchase, redeem, defease or otherwise acquire or retire for value, prior to any scheduled repayment, scheduled sinking fund payment or scheduled maturity, any Subordinated Obligations or Guarantor Subordinated Obligations, other than:
(A)Indebtedness of the Issuer owing to and held by any Guarantor or Indebtedness of a Guarantor owing to and held by the Issuer or any other Guarantor permitted under clause (5) of Section 4.09(b); or
(B)the purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations or Guarantor Subordinated Obligations of any Guarantor purchased in anticipation of satisfying a sinking fund obligation, principal installment or final
maturity, in each case due within one year of the date of purchase, repurchase, redemption, defeasance or other acquisition or retirement; or
(44)make any Restricted Investment.
(all such payments and other actions referred to in clauses (1) through (4) of this Section 4.08(a) (other than any exception thereto) shall be referred to as a “Restricted Payment”).
(45)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Capital Stock or Disqualified Stock of the Company or Subordinated Obligations of the Issuer or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Capital Stock of the Company (other than Disqualified Stock and other than Capital Stock issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or Guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination);
(46)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Subordinated Obligations of the Issuer or Guarantor Subordinated Obligations of any Guarantor made by exchange for, or out of the proceeds of the substantially concurrent sale of, Subordinated Obligations of the Issuer or any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Guarantor Subordinated Obligations of any Guarantor made by exchange for or out of the proceeds of the substantially concurrent sale of Guarantor Subordinated Obligations of a Guarantor, so long as such refinancing Subordinated Obligations or Guarantor Subordinated Obligations are permitted to be Incurred pursuant to Section 4.09 and constitute Refinancing Indebtedness;
(47)any purchase, repurchase, redemption, defeasance or other acquisition or retirement of Disqualified Stock of the Company or a Subsidiary made by exchange for or out of the proceeds of the substantially concurrent sale of Disqualified Stock of the Company or such Subsidiary, as the case may be, so long as such refinancing Disqualified Stock is permitted to be Incurred pursuant to Section 4.09 and constitutes Refinancing Indebtedness;
(48)the purchase, repurchase, redemption, defeasance or other acquisition or retirement for value of any Subordinated Obligation or Guarantor Subordinated Obligation (A) at a purchase price not greater than 101% of the principal amount of such Subordinated Obligation or Guarantor Subordinated Obligation, as applicable, in the event of a Change of Control in accordance with provisions similar to Section 4.15 or (B) at a purchase price not greater than 100% of the principal amount thereof in accordance with provisions similar to Section 4.16; provided that, prior to or simultaneously with such purchase, repurchase, redemption, defeasance or other acquisition or retirement, the Issuer has made the Change of Control Offer or Asset Disposition Offer, as applicable, as provided in such covenant with respect to the Notes and has completed the repurchase or redemption of all Notes validly tendered for payment in connection with such Change of Control Offer or Asset Disposition Offer;
(49)any purchase or redemption of Subordinated Obligations or Guarantor Subordinated Obligations from Net Available Cash to the extent permitted under Section 4.16; (50)dividends paid within 60 days after the date of declaration if at such date of declaration such dividend would have complied with this Section 4.08;
(51)the purchase, redemption or other acquisition (including by cancellation of Indebtedness), cancellation or retirement for value of Capital Stock or equity appreciation rights of the Company held by any future, present or former directors, Officers, employees, management or consultants or advisors of the Company or any Subsidiary of the Company or their assigns, estates, heirs, family members or former family members or any other permitted transferee, in each case in connection with the repurchase provisions under stock option or stock purchase agreements or other agreements to compensate such persons approved by the Board of Directors of the Company; provided that such redemptions or repurchases pursuant to this clause will not exceed $2.5 million in the aggregate during any fiscal year, with any unused amounts in any fiscal year being carried over to the succeeding fiscal year (the “Carryover Amount” and, for purposes of calculating the Carryover Amount for any fiscal year, the unused amounts from the prior fiscal year shall be deemed to have been utilized first by making any Restricted Payment pursuant to this clause (7) in such fiscal year), although such amount in any fiscal year may be increased by an amount not to exceed:
(A)the Net Cash Proceeds from the sale of Capital Stock (other than Disqualified Stock) of the Company to future, existing or former employees, directors, consultants or members of management of the Company or any of its Subsidiaries that occurs after the Issue Date; plus
(B)the cash proceeds of key man life insurance policies received by the Company or its Subsidiaries after the Issue Date; less
(C)the amount of any Restricted Payments made since the Issue Date with the Net Cash Proceeds described in clauses (A) and (B) of this clause (7);
provided, further, that the cancellation of Indebtedness owing to the Company from employees, directors, Officers or consultants or members of management of the Company or any of its Subsidiaries (including their permitted transferees) in connection with any repurchase of Capital Stock will not be deemed to constitute a Restricted Payment under this Indenture;
(52)the declaration and payment of dividends to holders of any class or series of Disqualified Stock of the Company issued in accordance with the terms of this Indenture to the extent such dividends are included in the definition of “Consolidated Interest Expense”;
(53)repurchases of Capital Stock deemed to occur (A) upon the exercise, conversion or exchange of stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities if such Capital Stock represents all or portion of the exercise price thereof or (B) as a result of Capital Stock being utilized to satisfy tax withholding obligations upon (a) the exercise of stock options or (b) the vesting of other equity awards that constitute Capital Stock;
(54)any payment of cash in respect of fractional shares of the Company’s Capital Stock upon the exercise, conversion or exchange of any stock options, warrants, other rights to purchase Capital Stock or other convertible or exchangeable securities of the Company;
(55)any repayments of Indebtedness (a) of the Company, the Issuer or any Guarantor owing to and held by the Company, the Issuer or any Guarantor or Indebtedness of a Non-Guarantor Subsidiary owing to and held by the Company or any other Subsidiary, and (b) owing to any Non-Guarantor Subsidiary in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany repayments to the Board of Directors of the Company; provided, further, that any intercompany
repayments that exceed $10.0 million will only be permitted to the extent that the Company reports such repayments to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following the repayment that caused aggregate intercompany repayments to exceed $10.0 million;
(56)any payments required to be made to former holders of Wincor Nixdorf Shares in connection with any appraisal proceeding (Spruchverfahren);
(57)[reserved];
(58)[reserved];
(59)Restricted Payments made pursuant to the Diebold, Incorporated 2014 Non-Qualified Stock Purchase Plan (or any successor thereto) in an aggregate amount (net of employee contributions) not to exceed $2.0 million in any fiscal year;
(60)the repurchase or redemption of the Company’s Capital Stock or rights to purchase such Capital Stock issued in connection with any future shareholder rights plan of the Company;
(61)Restricted Payments required to be made pursuant to the terms of the Domination Agreement;
(62)[reserved];
(63)Restricted Payments in connection with the China JV Restructuring; and
(64)other Restricted Payments (excluding non-cash Restricted Payments consisting of Collateral) in an aggregate amount, when taken together with all other Restricted Payments made pursuant to this clause (20) (as reduced by the amount of capital returned from any such Restricted Payments (exclusive of items reflected in Consolidated Net Income)) not to exceed $15.0 million (with the Fair Market Value of each Restricted Payment being measured at the time made and without giving effect to subsequent changes in value);
provided, however, that at the time of and after giving effect to, any Restricted Payment permitted under clauses (5), (8) and (20), no Default shall have occurred and be continuing or would occur as a consequence thereof.
(c)The amount of all Restricted Payments (other than cash) will be the Fair Market Value on the date of such Restricted Payment (without giving effect to subsequent changes in value) of the assets or securities proposed to be transferred or issued by the Company or such Subsidiary, as the case may be, pursuant to such Restricted Payment. The amount of any Restricted Payment paid in cash shall be its face amount.
(d)To the extent any cash or any other property is paid or distributed by the Company or any of its Subsidiaries upon the conversion or exchange of any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock of the Company or upon any other acquisition or retirement of any Indebtedness of the Company or any of its Subsidiaries for an amount based on the value of such Capital Stock, (1) any amount of such cash or property that exceeds the principal amount of the Indebtedness that is converted, exchanged, acquired or retired and any accrued interest paid thereon (and only such excess amount) shall be deemed to be a Restricted Payment and (2) the amount of such cash or property up to an amount equal to the principal amount of the Indebtedness
that is converted, exchanged, acquired or retired shall be deemed to be a Restricted Payment if such Indebtedness is a Subordinated Obligation or Guarantor Subordinated Obligation. If the Company or any of its Subsidiaries repurchases any Indebtedness of the Company or its Subsidiaries convertible or exchangeable for Capital Stock of the Company in the open market at a price in excess of the principal amount of such Indebtedness and any accrued and unpaid interest thereon, such excess amount shall be deemed to be a Restricted Payment.
(e)For the avoidance of doubt, the Company shall not, and shall not permit any Subsidiary to, make any principal payment on, or purchase, repurchase, redeem, defease, or otherwise acquire or retire for value, prior to the respective scheduled maturity, any (i) Stub Obligations, except either (a) with the cash proceeds of (x) Indebtedness that (A) is junior with respect to security (including by way of being unsecured) and payment priority to each of the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the New 2L Notes and (B) with respect to which Indebtedness interest may not be paid in cash and may only be paid in kind or (y) newly issued equity of or capital contributions in the Company, or (b) 2024 Notes in connection with the Registered Exchange Offer or pursuant to Section 4.18 or (ii) New 2L Notes, other than a Permitted Equity Issuance Prepayment or in connection with a “change of control” (as defined under the New 2L Notes Indenture) (and solely to the extent the Company (a) has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes, or (b) if any Obligations under such facilities have not been so repaid, only to the extent the “Change of Control Offer” (as defined in the New 2L Notes Indenture) is made using amounts offered to holders of such Obligations, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders).
Section 4.09 Limitation on Indebtedness.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, Incur any Indebtedness (including Acquired Indebtedness).
(b)The provisions of Section 4.09(a) will not prohibit the Incurrence of the following Indebtedness:
(65)The Incurrence by the Company or its guarantors of Indebtedness under the ABL Facility, the Guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount or liquidation preference, if applicable, not to exceed at any one time outstanding $250.0 million;
(66)Indebtedness of the Issuer represented by the Notes (including the Exchange Notes issued on the Issue Date) and Indebtedness of any Guarantor represented by a Note Guarantee (including in respect of such Exchange Notes);
(67)Indebtedness of the Company and its Subsidiaries in existence on the Issue Date (other than Indebtedness described in clauses (1), (2), (4), (5), (6), (8), (10), (11), (15), (16), (19), (20) and (22) of this Section 4.09(b)); provided that any amounts of any such Indebtedness paid down in connection with any purchases, repurchases, redemptions or otherwise (other than in connection with a substantially concurrent refinancing by way of Refinancing Indebtedness) shall be reduced from any amount of Indebtedness Incurred under this clause (3) of this Section 4.09(b) that would otherwise be permitted to be Incurred using Refinancing Indebtedness; provided, further that any New 2L Notes issued pursuant to the Registered Exchange Offer (to the extent such notes do not cause the aggregate principal amount of New 2L Notes outstanding as of the date of, and after giving effect to, the completion of the Registered Exchange Offer to exceed the sum of (i) $400.0 million, plus (ii) the principal amount of PIK
Interest (as such term is defined in the New 2L Notes Indenture) (issued or accrued) on New 2L Notes outstanding as of such date to, but excluding, such date, plus (iii) the principal amount of New 2L Notes issued in respect of any accrued and unpaid interest to, but excluding, the Issue Date or such date, as applicable, on any 2024 Notes tendered and accepted for exchange in the Exchange Offer or the Registered Exchange Offer, plus (iv) any other accrued and unpaid fees/expenses in respect of such 2024 Notes that were unpaid at the time of the completion of the Exchange Offer or the Registered Exchange Offer, as applicable, to the extent such fees/expenses were permitted to be, and were, paid for through the issuance of additional New 2L Notes) shall be permitted and deemed Incurred under this Section 4.09(b)(3);
(68)Guarantees by (A) the Issuer or any Guarantor of (i) Indebtedness Incurred by the Issuer or a Guarantor on or before the Issue Date or (ii) Indebtedness of Non- Guarantor Subsidiaries subject to clause (3) of the definition of Permitted Investments; provided that in the event such Indebtedness that is being Guaranteed under this clause (A) is a Subordinated Obligation or a Guarantor Subordinated Obligation, then the related Guarantee shall be subordinated in right of payment to the Notes or the Note Guarantee, as the case may be, and
(B) Non-Guarantor Subsidiaries of Indebtedness Incurred by Non-Guarantor Subsidiaries in accordance with the provisions of this Indenture;
(69)Indebtedness (a) of the Company, the Issuer or any Guarantor owing to and held by the Company or any Subsidiary or Indebtedness of a Non-Guarantor Subsidiary owing to and held by the Company, the Issuer or any other Subsidiary; provided that any Indebtedness of the Company, the Issuer or a Guarantor owing to and held by any Non- Guarantor Subsidiaries shall be in an aggregate amount outstanding not to exceed $10.0 million at the time any such Indebtedness is Incurred, and (b) in connection with ordinary course cash management operations; provided, that the Company delivers regular updates regarding intercompany Indebtedness to the Board of Directors of the Company; provided, further, that any intercompany Indebtedness that exceeds $10.0 million will only be permitted to the extent that the Company reports such Indebtedness to the Board of Directors of the Company in the regular fiscal quarter reporting immediately following the Incurrence of Indebtedness that caused aggregate intercompany Indebtedness to exceed $10.0 million; provided, further, that:
(A)if the Issuer is the obligor on Indebtedness owing to a Non- Guarantor Subsidiary, such Indebtedness is expressly subordinated to the prior payment in full in cash of all obligations with respect to the Notes;
(B)if a Guarantor is the obligor on Indebtedness owing to a Non- Guarantor Subsidiary, such Indebtedness is expressly subordinated in right of payment to the Note Guarantee of such Guarantor; and
(C)(i) any subsequent issuance or transfer of Capital Stock or any other event which results in any such Indebtedness being beneficially held by a Person other than the Company or a Subsidiary of the Company; and
(ii) any sale or other transfer of any such Indebtedness to a Person other than the Company or a Subsidiary of the Company,
shall be deemed, in each case under this clause (5)(C) of this Section 4.09(b), to constitute an Incurrence of such Indebtedness by the Company or such Subsidiary, as the case may be;
(70)Preferred Stock of a Subsidiary held by the Company or any other Subsidiary; provided, however, that (A) any subsequent issuance or transfer of Capital Stock or any other event which results in such Preferred Stock being beneficially held by a Person other than the Company or a Subsidiary of the Company; and (B) any sale or other transfer of any such Preferred Stock to a Person other than the Company or a Subsidiary of the Company shall be deemed in each case under this clause (6) to constitute an Incurrence of such Preferred Stock by such Subsidiary;
(71)[reserved];
(72)Indebtedness under Hedging Obligations that are Incurred in the ordinary course of business (and not for speculative purposes);
(73)Indebtedness (including Capitalized Lease Obligations) of the Company or a Subsidiary Incurred to finance the purchase, lease, construction or improvement of any property, plant or equipment used or to be used in the business of the Company or such Subsidiary through the direct purchase of such property, plant or equipment, and any Indebtedness of the Company or a Subsidiary which serves to refinance any Indebtedness Incurred pursuant to this clause (9) in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause
(9) and then outstanding, will not exceed $20.0 million;
(74)Indebtedness Incurred by the Company or its Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(75)Indebtedness (other than Indebtedness for borrowed money) arising from agreements of the Company or a Subsidiary providing for indemnification, contribution, earn-out, adjustment of purchase price or similar obligations, in each case, Incurred or assumed in connection with the acquisition or disposition of any business or assets of the Company or any business, assets or Capital Stock of a Subsidiary;
(76)[reserved];
(77)the Incurrence by the Company or any Subsidiary of Refinancing Indebtedness that serves to refinance any Indebtedness Incurred as permitted under clauses (2) and (3) and this clause (13) of this Section 4.09(b); (78)[reserved];
(79)Indebtedness consisting of avals by any of the Company or its Subsidiaries for the benefit of, and with respect to obligations that are not classified as Indebtedness of, any of the Company or its Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices;
(80)Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(81)[reserved];
(82)[reserved];
(83)Indebtedness Incurred in the ordinary course of business in connection with cash pooling arrangements and cash management arrangements in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject to such arrangements;
(84)Indebtedness consisting of the financing of insurance premiums;
(85)[reserved];
(86)Indebtedness Incurred under Bi-lateral LC/WC Agreements in an aggregate principal amount outstanding at any one time not to exceed $55.0 million (such amount will be calculated exclusive of any bank guarantee or the like issued in connection with a
squeeze-out of any minority shareholders of Wincor Nixdorf (i) in accordance with Sec. 327b(3) of the German Stock Corporation Act (Aktiengesetz), (ii) in accordance with Sec. 62 of the German Transformation Act (Umwandlungsgesetz) in conjunction with 327b(3) of the German Stock Corporation Act (Aktiengesetz), (iii) in relation to a squeeze-out pursuant to 39a and 39b of the German Takeover Code (Wertpapiererwerbs- und Übernahmegesetz) or (iv) a delisting offer pursuant to Sec. 39(2) of the German Stock Exchange Act (Börsengesetz) or similar corporate restructurings)); and
(87)in addition to the items referred to in clauses (1) through (22) above, Indebtedness of the Company and its Subsidiaries in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Indebtedness Incurred pursuant to this clause (23) and then outstanding, will not exceed $50.0 million at any time outstanding.
(c)The Issuer will not Incur any Indebtedness under Section 4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Subordinated Obligations of the Issuer unless such Indebtedness will be subordinated to the Notes to at least the same extent as such Subordinated Obligations. No Guarantor will Incur any Indebtedness under Section 4.09(b) if the proceeds thereof are used, directly or indirectly, to refinance any Guarantor Subordinated Obligations of such Guarantor unless such Indebtedness will be subordinated to the obligations of such Guarantor under its Note Guarantee to at least the same extent as such Guarantor Subordinated Obligations. No Subsidiary (other than a Guarantor) may Incur any Indebtedness if such Indebtedness is used, directly or indirectly, to refinance Indebtedness of the Issuer or a Guarantor.
(d)For purposes of determining compliance with this Section 4.09:
(88)in the event that Indebtedness meets the criteria of more than one of the types of Indebtedness described in Section 4.09(b), the Company, in its sole discretion, will classify such item of Indebtedness on the date of Incurrence and may later reclassify such item of Indebtedness in any manner that complies with Section 4.09(b) and will be entitled to divide the amount and type of such Indebtedness among more than one of the clauses of Section 4.09(b);
(89)if obligations in respect of letters of credit are Incurred pursuant to a Debt Facility and relate to other Indebtedness, then such letters of credit shall be treated as Incurred pursuant to such Debt Facility and such other Indebtedness shall not be included; and
(90)except as provided in clause (2) of this Section 4.09(d), Guarantees of, or obligations in respect of letters of credit relating to, Indebtedness that is otherwise included in the determination of a particular amount of Indebtedness shall not be included. (e)Accrual of interest, accrual of dividends, the accretion of accreted value, the amortization of debt discount, the payment of interest in the form of additional Indebtedness and the payment of dividends in the form of additional shares of Preferred Stock or Disqualified Stock will not be deemed to be an Incurrence of Indebtedness for purposes of this Section 4.09.
(f)For purposes of determining compliance with any U.S. dollar-denominated restriction on the Incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness; provided that if such Indebtedness is Incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this covenant, the maximum amount of Indebtedness that the Company or any Subsidiary may Incur pursuant to this covenant shall not be deemed to be exceeded solely as a result of fluctuations in the exchange rate of currencies. The principal amount of any Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.
(g)For purposes of this Indenture, no Indebtedness will be deemed to be contractually subordinated or junior in right of payment to any other Indebtedness solely by virtue of (1) being unsecured or (2) its having a junior priority with respect to the same collateral.
Section 4.10 Limitation on Liens.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, Incur, assume or suffer to exist any Lien (other than Permitted Liens) upon any of its property or assets (including Capital Stock of Subsidiaries), or income or profits therefrom, or assign or convey any right to receive income therefrom, whether owned on the Issue Date or acquired after that date, which Lien is securing any Indebtedness.
(b)In addition, if the Issuer or any Guarantor, directly or indirectly, creates, Incurs, assumes or suffers to exist any Lien (other than customary Liens on cash collateral in connection with the ABL Facility) securing any funded Indebtedness, a representative of which is required to become a party to an applicable Intercreditor Agreement, the Issuer or the Guarantor, as the case may be, must concurrently grant a Lien (subject to Permitted Liens) upon such property as security for the Notes and the Note Guarantees, with the Lien upon such property being of the same priority as the other Liens on the Collateral securing the Notes (in accordance with the Lien priorities in any applicable Intercreditor Agreement).
Section 4.11 Future Guarantors.
(a)The Company will cause (i) each Non-Guarantor Subsidiary (other than the Issuer or an Excluded Subsidiary) that, on the Issue Date or any time thereafter, becomes a borrower or Guarantees the Obligations under any of the Superpriority Credit Facility, the 2025 Credit Facility, the
2023 Credit Facility, the 2024 Notes, the New 2L Notes or the 2025 U.S. Notes and (ii) each Non- Guarantor Subsidiary (other than the Issuer, an Excluded Subsidiary or an Immaterial Subsidiary) domiciled or organized in the United States or any Specified Jurisdiction that, on the Issue Date or any time thereafter, Guarantees any other Indebtedness for borrowed money of (a) the Issuer or any Guarantor or (b) any Non-Guarantor Subsidiary (and with respect to sub-clause (ii)(b), only to the extent such Indebtedness exceeds $10.0 million), to promptly execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture to this Indenture, the form of which is attached hereto as Exhibit C, pursuant to which such Subsidiary will irrevocably and unconditionally Guarantee, on a joint and several basis, the full and prompt payment of the principal of, premium, if any, and interest (including additional interest, if any) in respect of the Notes on a senior basis and all other Obligations under this Indenture, in each case, subject to the Collateral and Guarantee Requirements.
(b)Each Subsidiary that becomes a Subsidiary Guarantor on or after the Issue Date will also become a party to the applicable Collateral Documents and the applicable Intercreditor Agreements and will as promptly as practicable execute and deliver such joinder documents, security instruments, and financing statements, and, with respect to any Material Real Property located in the United States, Mortgages, opinions of counsel, surveys and title insurance policies as required under Section 11.06, under this Indenture and Collateral Documents to the extent, and substantially in the form, delivered on the Issue Date or, if later, on the date first delivered (but no greater scope) as may be necessary to vest in the Notes Collateral Agent a perfected security interest with the priority described in any applicable Intercreditor Agreement, in each case, subject to no Liens other than Permitted Liens and otherwise in the manner and to the extent set forth in the Collateral Documents and this Indenture and, subject to the terms of the applicable Intercreditor Agreements, in the properties and assets of such new Subsidiary Guarantor constituting Collateral as security for the Notes or the Note Guarantees, and thereupon all provisions of this Indenture and the applicable Intercreditor Agreements relating to the Collateral shall be deemed to relate to such properties and assets to the same extent and with the same force and effect.
(c)At each time of distribution of annual or quarterly financial information pursuant to clauses (1) or (2) of Section 4.06(a), the Company shall calculate the total assets and total revenues of all Immaterial Subsidiaries of the Company. In the event that the total assets or total revenues of all Immaterial Subsidiaries of the Company that Guarantee any Indebtedness of the Issuer or any Guarantor for borrowed money (other than Priority Secured Indebtedness or Pari Passu Secured Indebtedness) would exceed 10.0% of the total assets or total revenues (after intercompany eliminations) of the Company and its Subsidiaries, in each case determined in accordance with GAAP and as shown on the Company’s consolidated balance sheet as of the end of the most recent fiscal quarter for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available and its consolidated statement of operations for the period of the most recent four consecutive fiscal quarters ending on such balance sheet date, the Company shall, within 30 days of the date of distribution of such financial information, cause one or more Immaterial Subsidiaries of the Company that Guarantee any Indebtedness of the Issuer or any Guarantor for borrowed money to provide Note Guarantees as and to the extent required to cause the total assets and total revenues of all Immaterial Subsidiaries of the Company not to exceed 10.0% of the total assets or total revenues (after intercompany eliminations) of the Company and its Subsidiaries, in each case, subject to the Collateral and Guarantee Requirements.
(d)The obligations of each Guarantor will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor (including, without limitation, any Guarantees of the Priority Secured Indebtedness or Pari Passu Secured Indebtedness) and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the Obligations of such other Guarantor under its Note Guarantee or pursuant to its contribution Obligations under this Indenture, result in the Obligations of such Guarantor under its Note Guarantee not
constituting a preference, fraudulent conveyance or fraudulent transfer under federal or state law or any applicable foreign law.
(e)Each Note Guarantee of a Subsidiary Guarantor shall be released in accordance with the provisions of Section 10.06. Section 4.12 Limitation on Restrictions on Distribution From Subsidiaries.
(a)The Company will not, and will not permit any Subsidiary to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or consensual restriction on the ability of any Subsidiary to:
(91)pay dividends or make any other distributions on its Capital Stock to the Company or any of its Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any Indebtedness or other obligations owed to the Company or any Subsidiary (it being understood that the priority of any Preferred Stock in receiving dividends or liquidating distributions prior to dividends or liquidating distributions being paid on Common Stock shall not be deemed a restriction on the ability to make distributions on Capital Stock);
(92)make any loans or advances to the Company or any Subsidiary (it being understood that the subordination of loans or advances made to the Company or any Subsidiary to other Indebtedness Incurred by the Company or any Subsidiary shall not be deemed a restriction on the ability to make loans or advances); or
(93)sell, lease or transfer any of its property or assets to the Company or any Subsidiary (it being understood that such transfers shall not include any type of transfer described in clause (1) or (2) of this Section 4.12(a)).
(b)The provisions of Section 4.12(a) will not prohibit encumbrances or restrictions existing under or by reason of: (94)contractual encumbrances or restrictions pursuant to the ABL Facility, the Superpriority Credit Facility, the 2025 Credit Facility, the 2024 Notes Indenture and the 2024 Notes and related Guarantees, the New 2L Notes Indenture and the New 2L Notes and related Guarantees, the 2023 Credit Facility and related documentation and other agreements or instruments in effect at or entered into on the Issue Date;
(95)the 2025 Notes Indentures, the 2025 Notes, the related Guarantees, the Collateral Documents, and the Intercreditor Agreements;
(96)any agreement or other instrument of a Person acquired by the Company or any of its Subsidiaries in existence at the time of such acquisition (but not created in contemplation thereof), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person and its Subsidiaries, or the property or assets of the Person and its Subsidiaries, so acquired (including after-acquired property);
(97)any amendment, restatement, modification, renewal, supplement, refunding, replacement or refinancing of an agreement referred to in clauses (1), (2) or (3) of this Section 4.12(b) or this clause (4) of this Section 4.12(b); provided, however, that such amendments, restatements, modifications, renewals, supplements, refundings, replacements or refinancings are, in the good faith determination of the Company, taken as a whole, no more restrictive with respect to encumbrances and restrictions of the nature described in clauses (1), (2)
and (3) of Section 4.12(a) contained in the agreements referred to in clauses (1), (2) or (3) of this Section 4.12(b) on the Issue Date, the date such Subsidiary became a Subsidiary or was merged into, or amalgamated or consolidated with a Subsidiary, whichever is applicable; (98)in the case of clause (3) of Section 4.12(a), Liens permitted to be Incurred under Section 4.10 that limit the right of the debtor to dispose of the assets securing such Indebtedness;
(99)purchase money obligations for property acquired in the ordinary course of business and Capitalized Lease Obligations permitted under this Indenture, in each case, that impose encumbrances or restrictions of the nature described in clause (3) of Section 4.12(a) on the property so acquired;
(100)contracts for the sale of assets, including customary restrictions with respect to a Subsidiary of the Company pursuant to an agreement that has been entered into for the sale or disposition of all or a portion of the Capital Stock or assets of such Subsidiary;
(101)restrictions on cash or other deposits or net worth imposed by customers, suppliers, lessors or landlords or required by insurance, surety or bonding companies under contracts entered into in the ordinary course of business;
(102)any customary provisions in leases, subleases or licenses and other agreements entered into by the Company or any Subsidiary in the ordinary course of business and consistent with past practices;
(103)restrictions on cash or other deposits to secure the performance of bids, trade contracts, tenders, government contracts, leases, statutory obligations, surety, stay, custom, performance and appeal bonds or other obligations of a like nature (including standby letters of credit or completion guarantees), in each case in the ordinary course of business;
(104)encumbrances or restrictions arising or existing by reason of applicable law or any applicable rule, regulation or order;
(105)any customary provisions in partnership agreements, limited liability company agreements, joint venture agreements, other similar agreements and related governance documents entered into in the ordinary course of business;
(106)to the extent required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary of which less than 90% of the Voting Stock is owned by the Company or any of its Subsidiaries; and
(107)other Indebtedness Incurred or Preferred Stock issued by a Subsidiary permitted to be Incurred pursuant to the provisions of Section 4.09 that, in the good faith determination of the Company, are not more restrictive with respect to encumbrances and restrictions of the nature described in clauses (1), (2) and (3) of Section 4.12(a), taken as a whole, than those applicable to the Issuer under the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2024 Notes and the 2024 Notes Indenture, the New 2L Notes and the New 2L Notes Indenture, or the 2025 Notes and the 2025 Notes Indentures on the Issue Date (which results in encumbrances or restrictions at a Subsidiary level comparable to those applicable to the Issuer).
Section 4.13 [Reserved].
Section 4.14 Transactions with Affiliates.
(a)The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, enter into or conduct any transaction (including the purchase, sale, lease or exchange of any property or asset or the rendering of any service) with any Affiliate of the Company (an “Affiliate Transaction”) involving an aggregate consideration in excess of $5.0 million, unless:
(108)the terms of such Affiliate Transaction are not materially less favorable to the Company or such Subsidiary, as the case may be, than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at the time of such transaction in arm’s-length dealings with a Person that is not an Affiliate;
(109)in the event such Affiliate Transaction involves an aggregate consideration in excess of $30.0 million, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (1) of this Section 4.14(a)); and
(110)in the event such Affiliate Transaction involves an aggregate consideration in excess of $50.0 million, the Company has received a written opinion from an Independent Financial Advisor stating that such Affiliate Transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
(111)any transaction among Non-Guarantor Subsidiaries and Non-Borrower Subsidiaries and any Guarantees issued by any Non-Guarantor Subsidiary for the benefit of any Non-Guarantor Subsidiary, as the case may be, in accordance with Section 4.09;
(112)Restricted Payments permitted to be made pursuant to Section 4.08 or Permitted Investments, provided that any Investment made in a Non-Guarantor Subsidiary shall be made on commercially reasonable terms;
(113)issuances or sales of Capital Stock (other than Disqualified Stock) of the Company in connection with any contribution to the capital of the Company;
(114)any issuance of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or as the funding of, employment agreements and other compensation arrangements, options to purchase Capital Stock of the Company, restricted stock plans, long-term incentive plans, stock appreciation rights plans, participation plans or similar employee benefits plans and/or indemnity provided on behalf of Officers and employees approved by the Board of Directors of the Company;
(115)the payment of reasonable and customary fees and reimbursed expenses paid to, and indemnity provided on behalf of, directors of the Company or any Subsidiary;
(116)loans or advances to employees, Officers, directors or consultants of the Company or any Subsidiary in the ordinary course of business consistent with past practices;
(117)any transaction with a Person that would constitute an Affiliate Transaction solely because the Company or a Subsidiary owns Capital Stock in or otherwise controls such Person;
(118)any agreement as in effect as of the Issue Date, as these agreements may be amended, modified, supplemented, extended or renewed from time to time, so long as any such amendment, modification, supplement, extension or renewal is not more disadvantageous to the Holders in any material respect in the good faith judgment of the Board of Directors of the Company, when taken as a whole, than the terms of the agreements in effect on the Issue Date;
(119)any agreement between any Person and an Affiliate of such Person existing at the time such Person is acquired by or merged into, or amalgamated or consolidated with, the Company or a Subsidiary; provided that such agreement was not entered into in contemplation of such acquisition, amalgamation, consolidation or merger, and any amendment thereto, so long as any such amendment is not disadvantageous to the Holders in the good faith judgment of the Board of Directors of the Company when taken as a whole as compared to the applicable agreement as in effect on the date of such acquisition, amalgamation, consolidation or merger;
(120)transactions with customers, clients, suppliers, joint venture partners or purchasers or sellers of goods or services, in each case in the ordinary course of the business of the Company and its Subsidiaries and otherwise in compliance with the terms of this Indenture; provided that in the reasonable determination of the Company, such transactions are on terms that are no less favorable to the Company or the relevant Subsidiary than those that could have been obtained at the time of such transactions in a comparable transaction by the Company or such Subsidiary with an unrelated Person;
(121)any grant, issuance or sale of Capital Stock (other than Disqualified Stock) to Affiliates of the Company and the granting of registration and other customary rights in connection therewith; and
(122)transactions in which the Company or any Subsidiary delivers to the Trustee a letter from an Independent Financial Advisor stating that such transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate.
Section 4.15 Offer to Repurchase Upon Change of Control.
(a)If a Change of Control occurs, the Issuer will make an offer to purchase all of the Notes (the “Change of Control Offer”) at a purchase price in cash equal to 101% of the principal amount of the Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (the “Change of Control Payment”), subject to the right of Holders of record on a Record Date to receive any interest due on the Change of Control Payment Date. Within 30 days following any Change of Control, unless the Issuer has exercised its right to redeem all of the Notes pursuant to Section 3.07, the Issuer will mail a notice of such Change of Control Offer to each Holder or otherwise send such notice in accordance with the Applicable Procedures, with a copy to the Trustee, stating:
(123)that a Change of Control Offer is being made pursuant to this Section 4.15, the expiration time for such Change of Control Offer (which shall be no earlier than 30 days nor later than 60 days from the date such notice is mailed or otherwise sent in accordance with the Applicable Procedures) and that all Notes properly tendered pursuant to such Change of Control Offer will be accepted for purchase by the Issuer at a purchase price in cash equal to 101% of the principal amount of such Notes plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on the applicable Record Date to receive interest due on the Change of Control Payment Date);
(124)the purchase date (which shall be no later than five Business Days after the date such Change of Control Offer expires) (the “Change of Control Payment Date”);
(125)if such notice is delivered prior to the occurrence of a Change of Control, that the Change of Control Offer is conditioned upon the occurrence of such Change of Control and setting forth a brief description of the definitive agreement for the Change of Control;
(126)that Notes must be tendered in integral multiples of €1,000, and any Note not properly tendered will remain outstanding and continue to accrue interest;
(127)that, unless the Issuer defaults in the payment of the Change of Control Payment, any Note accepted for payment pursuant to the Change of Control Offer will cease to accrue interest on and after the Change of Control Payment Date;
(128)that Holders electing to have any Notes purchased pursuant to a Change of Control Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” attached to such Notes completed, to the Paying Agent specified in the notice at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;
(129)that Holders shall be entitled to withdraw their tendered Notes and their election to require the Issuer to purchase such Notes; provided that the Paying Agent receives at the address specified in the notice, not later than the of such Change of Control Offer, a facsimile transmission or letter setting forth the name of the Holder, the principal amount of Notes tendered for purchase and a statement that such Holder is withdrawing its tendered Notes and its election to have such Notes purchased;
(130)that, if a Holder is tendering less than all of its Notes, such Holder will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer) (the unpurchased portion of the Notes must be equal to €2,000 and integral multiples of €1,000 in excess thereof); and
(131)the other procedures, as determined by the Issuer, consistent with this Section 4.15 that a Holder must follow in order to have its Notes repurchased.
The notice, if mailed or otherwise delivered in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. If (A) the notice is mailed or otherwise delivered in a manner herein provided and (B) any Holder fails to receive such notice or a Holder receives such notice but it is defective, such Holder’s failure to receive such notice or such defect shall not affect the validity of the proceedings for the purchase of the Notes as to all other Holders that properly received such notice without defect.
(b)On the Change of Control Payment Date, the Issuer will, to the extent lawful:
(132)accept for payment all Notes or portions of Notes (in integral multiples of
€1,000) validly tendered and not validly withdrawn pursuant to the Change of Control Offer provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than €2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is €2,000;
(133)deposit with the Paying Agent (or, if the Company or any Subsidiary is acting as Paying Agent, segregate and hold in trust) an amount sufficient to make the Change of Control Payment in respect of all Notes or portions of Notes so validly tendered and not validly withdrawn; and
(134)deliver or cause to be delivered to the Trustee for cancellation the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being purchased by the Issuer.
(c)The Paying Agent will promptly mail (or otherwise send in accordance with the Applicable Procedures) to each Holder of Notes so tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or otherwise send in accordance with the Applicable Procedures) (or cause to be transferred by book-entry) to each Holder a new Note (it being understood that, notwithstanding anything in this Indenture to the contrary, no Opinion of Counsel or Officer’s Certificate will be required for the Trustee to authenticate and mail or send such new Note) equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each such new Note will be in a principal amount of €2,000 and integral multiples of €1,000 in excess thereof.
(d)If the Change of Control Payment Date is on or after an interest record date and on or before the related Interest Payment Date, any accrued and unpaid interest to, but excluding, the Change of Control Payment Date will be paid on the Change of Control Payment Date to the Person in whose name a Note is registered at the close of business on such record date. Unless the Issuer defaults in the payment of the Change of Control Payment, interest will cease to accrue on the Notes or portions thereof purchased on the Change of Control Payment Date.
(e)The Issuer will not be required to make a Change of Control Offer upon a Change of Control if (1) a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Section 4.15 applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not validly withdrawn under such Change of Control Offer or (2) the Issuer has exercised its right to redeem all of the Notes in accordance with Section 3.07. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control, conditioned upon the occurrence of such Change of Control, if a definitive agreement is in place for the Change of Control at the time such Change of Control Offer is made.
(f)The Issuer will comply, to the extent applicable, with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws or regulations in connection with the repurchase of Notes pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by virtue of the conflict.
(g)If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not validly withdraw such Notes in a Change of Control Offer and the Issuer, or any third party making a Change of Control Offer in lieu of the Issuer pursuant to Section 4.15(e),
purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Issuer or such third party will have the right, upon not less than 30 days’ nor more than 60 days’ prior notice, given not more than 30 days following such purchase pursuant to such Change of Control Offer, to redeem all Notes that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to, but excluding, the date of redemption.
(h)If and for so long as the Notes are listed on the Official List of the Exchange and the rules of the Exchange so require, the Issuer will file a notice relating to the Change of Control offer as soon as reasonably practicable after the Change of Control Payment Date in accordance with the requirements of such rules. Such notice shall state the aggregate principal amount of Notes repurchased by the Issuer (or, if applicable, a third party) pursuant to the applicable Change of Control Offer and the aggregate principal amount of Notes outstanding after giving effect to such repurchase.
Section 4.16 Asset Dispositions.
(a)The Company will not, and will not permit any of its Subsidiaries to, cause or make any Asset Disposition unless:
(135)the Company or such Subsidiary, as the case may be, receives consideration at least equal to the Fair Market Value (such Fair Market Value to be determined on the date of contractually agreeing to such Asset Disposition) of the shares and assets subject to such Asset Disposition;
(136)100% of the consideration from such Asset Disposition received by the Company or such Subsidiary, as the case may be, is in the form of cash or Cash Equivalents (and with respect to any securities, notes or other obligations received by the Company or any Subsidiary from the transferee that are Cash Equivalents, only to the extent such instruments are converted by the Company or such Subsidiary into cash (to the extent of the cash received)) within 180 days following the closing of such Asset Disposition; and
(137)to the extent that any consideration received by the Company or any Subsidiary in such Asset Disposition constitutes securities or other assets that are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes and the Note Guarantees, as applicable, being of the same priority with respect to the Notes and the Note Guarantees, as applicable, as the Lien on the assets disposed of in the Asset Disposition.
(b)Any Net Available Cash from (a) any transaction or series of related transactions constituting an Asset Disposition in excess of $25.0 million and (b) any transactions (other than those referred to in (a)) involving the sale of assets within the most recent four consecutive fiscal quarters ending prior to any date of determination for which internal financial statements prepared on a consolidated basis in accordance with GAAP are available (to be calculated at the end of each fiscal quarter, with respect to such quarter and the prior three fiscal quarters), which transactions in aggregate are in excess of $25.0 million for such four quarter period, shall constitute “Asset Disposition Proceeds”. Within five Business Days from (i) the date the Company or any of its Subsidiaries receives Asset Disposition Proceeds or (ii) the delivery of the most recent such financial statements (solely in connection with (b) above, as applicable (such date, the “Proceeds Trigger Date”) an amount equal to 100% of the
Asset Disposition Proceeds shall be applied by the Company or such Subsidiary, as the case may be, as follows:
(138)if any of the assets disposed of in the Asset Disposition were ABL Priority Collateral, to reduce (and to, if required, permanently reduce commitments with respect thereto) (i) ABL Priority Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) and, (ii), solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub-clause (i), Priority Secured Indebtedness (and if such Priority Secured Indebtedness being reduced is revolving credit Indebtedness, to permanently reduce commitments with respect thereto) Incurred under the Superpriority Credit Facility and, (iii) solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub-clauses (i) and (ii), to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) Pari Passu Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the 2025 Credit Facility or the 2025 Notes, to the extent required by the ABL Facility and/or such other Pari Passu Secured Indebtedness; provided that if the Issuer elects to repay any Pari Passu Secured Indebtedness other than the Notes, the Issuer shall (i) equally and ratably reduce Obligations under the Notes, as provided under Section 3.07 or through open market purchased at or above 100% of the principal amount thereof or (ii) make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes on a ratable basis with such Pari Passu Secured Indebtedness at 100% of the principal amount thereof, in each case plus the amount of accrued but unpaid interest on the Notes that are purchased or redemeed;
(139)if any of the assets disposed of in the Asset Disposition do not constitute ABL Priority Collateral, to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) (i) Priority Secured Indebtedness (other than any Priority Secured Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the Superpriority Credit Facility; and, (ii) solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to sub- clause (i), Pari Passu Secured Indebtedness (other than any such Indebtedness owed to or held by the Company or any Affiliate of the Company) Incurred under the 2025 Credit Facility or the Notes, to the extent required by the ABL Facility and/or such other Pari Passu Secured Indebtedness, provided that if the Issuer elects to repay any Pari Passu Secured Indebtedness other than the Notes, the Issuer shall (i) equally and ratably reduce Obligations under the Notes, as provided under Section 3.07 or through open market purchases at or above 100% of the principal amount thereof or (ii) make an offer (in accordance with the procedures set forth below for an Asset Disposition Offer) to all Holders to purchase their Notes on a ratable basis with such Pari Passu Secured Indebtedness at 100% of the principal amount thereof, in each case plus the amount of accrued but unpaid interest on the Notes that are purchased or redeemed;
(140)solely to the extent the applicable Asset Disposition Proceeds have not been exhausted pursuant to Section 4.16(b)(1) and (2), reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) solely if required by its terms or applicable law, Junior Lien Indebtedness (other than any Junior Lien Indebtedness owed to or held by the Company or any Affiliate of the Company) or Indebtedness of a Non-Guarantor Subsidiary; provided, and notwithstanding the foregoing, the Company will not be permitted to repay the 2024 Notes or any other Junior Lien Indebtedness unless (i) it has first repaid, in cash, all Obligations under each of the Superpriority Credit Facility, the 2025 Credit Facility, and the 2025 Notes or, (ii) if any Obligations under such facilities have not been so repaid, only to the extent the repayment of any 2024 Notes or any such other Junior Lien
Indebtedness is made using amounts previously offered to holders of such Priority Secured Indebtedness or Pari Passu Secured Indebtedness, in accordance with the terms and conditions of the applicable facility, which amounts were declined by such holders;
(141)in the case of an Asset Disposition by a Non-Guarantor Subsidiary, to reduce (and, if the Indebtedness repaid is revolving credit Indebtedness, permanently reduce commitments with respect thereto) (A) Indebtedness of such Non-Guarantor Subsidiary (other than Indebtedness owed to the Issuer or a Guarantor), to the extent required by applicable local law or the terms of Indebtedness of any such Non-Guarantor Subsidiary or (B) Priority Secured Indebtedness or Pari Passu Secured Indebtedness of the Issuer or a Guarantor (following the same payment priority as set forth in Section 4.16(b)(2) and, if applicable, Section 4.16(b)(3), mutatis mutandis);
(142)to maintain, develop, construct, improve, upgrade, or repair assets, or replace disposed-of-assets (in each case, other than current assets), used or useful in such entity’s business or to replace assets sold in such Asset Disposition; provided that, to the extent that any newly acquired assets are of a type or class that constitutes Collateral, such securities or other assets are added to the Collateral securing the Notes and the Note Guarantees, as applicable, in the manner and to the extent required by this Indenture or any of the Collateral Documents with the Lien on such Collateral securing the Notes and the Note Guarantees, as applicable, being of the same priority with respect to the Notes and the Note Guarantees, as applicable, as the Lien on the assets disposed of in the Asset Disposition; or
(143)any combination of the foregoing;
provided that pending the final application of any such Net Available Cash in accordance with clause (1), (2), (3), (4), (5) or (6) of this Section 4.16(b), the Company and its Subsidiaries may temporarily reduce Indebtedness (including under the ABL Facility or a revolving Debt Facility) or otherwise invest such Net Available Cash in any manner not prohibited by this Indenture; provided, further, that in the case of clause (5) of this Section 4.16(b) (including as part of clause (6) of this Section 4.16(b)), any such expenditures must be made within 90 days of the Proceeds Trigger Date.
(c)Any Net Available Cash from Asset Dispositions that is not applied or invested as provided in Section 4.16(b) shall be deemed to constitute “Excess Proceeds.” On the 91st day after a Proceeds Trigger Date, the Issuer will be required to make an offer (an “Asset Disposition Offer”) to all Holders and, to the extent required by the terms of any outstanding Priority Secured Indebtedness or Pari Passu Secured Indebtedness, to all holders of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness , to purchase the maximum aggregate principal amount of Notes and any such Priority Secured Indebtedness or such Pari Passu Secured Indebtedness, as the case may be, that may be purchased out of the Excess Proceeds at an offer price in cash in an amount equal to 100% of the principal amount thereof, plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (subject to the right of Holders of record on a Record Date to receive interest due on the Asset Disposition Purchase Date), in accordance with the procedures set forth in Section 3.10 or the agreements governing the Priority Secured Indebtedness or the Pari Passu Secured Indebtedness, as applicable, in the case of the Notes in integral multiples of €1,000; provided that if, following repurchase of a portion of a Note, the remaining principal amount of such Note outstanding immediately after such repurchase would be less than €2,000, then the portion of such Note so repurchased shall be reduced so that the remaining principal amount of such Note outstanding immediately after such repurchase is €2,000. The Issuer shall commence an Asset Disposition Offer with respect to Excess Proceeds by mailing (or otherwise
communicating in accordance with the Applicable Procedures) the notice required by Section 3.10, with a copy to the Trustee.
(d)To the extent that the aggregate amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer is less than the Excess Proceeds, the Issuer may use any remaining Excess Proceeds to reduce any Indebtedness and for other general corporate purposes, subject to other covenants contained in this Indenture. If the aggregate principal amount of Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) validly tendered and not validly withdrawn pursuant to an Asset Disposition Offer exceeds the amount of Excess Proceeds, the Trustee shall select the Notes and such Priority Secured Indebtedness (and such Pari Passu Secured Indebtedness, as applicable) to be purchased on a pro rata basis on the basis of the aggregate accreted value or principal amount of tendered Notes and Priority Secured Indebtedness (and Pari Passu Secured Indebtedness, as applicable) (provided that the selection of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness shall be made pursuant to the terms of such Priority Secured Indebtedness and Pari Passu Secured Indebtedness), as applicable). Upon completion of such Asset Disposition Offer, the amount of Excess Proceeds shall be reset at zero.
Section 4.17 Effectiveness of Covenants.
(a)Following the first day (such date, a “Suspension Date”):
(144)the Notes have an Investment Grade Rating from both of the Rating
Agencies; and
(145)no Default has occurred and is continuing under this Indenture,
the Company and its Subsidiaries will not be subject to the provisions of Sections 3.10 and 4.16 (but, in each case, only with respect to any Asset Disposition of assets that are not or not required to be Collateral), 4.08, 4.09, 4.12, 4.14 and 5.01(a)(4) (collectively, the “Suspended Covenants”).
(b)If at any time the Notes’ credit rating is downgraded from an Investment Grade Rating by any Rating Agency or if a Default or Event of Default occurs and is continuing, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and be applicable pursuant to the terms of this Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of this Indenture), unless and until the Notes subsequently attain an Investment Grade Rating from both of the Rating Agencies and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade Rating from both of the Rating Agencies and no Default or Event of Default is in existence); provided, however, that no Default, Event of Default or breach of any kind shall be deemed to exist under this Indenture, the Notes or the Note Guarantees with respect to the Suspended Covenants based on, and none of the Company or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the Suspension Date and the Reinstatement Date is referred to as the “Suspension Period.” In addition, during any Suspension Period, the amount of Excess Proceeds shall be reset at zero.
(c)On the Reinstatement Date, all Indebtedness Incurred during the Suspension Period will be classified to have been Incurred pursuant to one of the clauses set forth in Section 4.09(b) (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reinstatement Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on
the Reinstatement Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 4.09(b), such Indebtedness will be deemed to have been outstanding on the Issue Date, so that it is classified under clause (3) of Section 4.09(b). Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.08(a) will be made as though Section 4.08(a) had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under Section 4.08(a).
(d)Promptly following the occurrence of any Suspension Date or Reinstatement Date, the Company will provide an Officer’s Certificate to the Trustee regarding such occurrence. The Trustee shall have no obligation to independently determine or verify if a Suspension Date or Reinstatement Date has occurred or notify the Holders of any Suspension Date or Reinstatement Date.
Section 4.18 Further Covenants.
(a)The Company shall (a) use reasonable best efforts, consistent with applicable securities laws, to file a Form S-4 by February 14, 2023 for a registered exchange offer offering unit securities comprised of New 2L Notes and warrants exercisable for shares of Common Stock of the Company in exchange for existing 2024 Notes held by holders that did not, or were not eligible to, participate in the exchange offer (the “2024 Exchange Offer”), launched on or about the date of the Offering Memorandum, offering units comprised of New 2L Notes and warrants exercisable for shares of Common Stock of the Company in exchange for existing 2024 Notes (the “Registered Exchange Offer”),
(b)use reasonable best efforts, consistent with applicable securities laws, to launch the Registered Exchange Offer as soon as practicable but no later than March 15, 2023 and (c) shall consummate the Registered Exchange Offer as soon as practicable but no later than May 30, 2023, subject to extension on the account of any SEC review period but in any event no later than June 30, 2023. In connection with such Registered Exchange Offer, the Company shall use reasonable best efforts to maximize retail participation in the Registered Exchange Offer, which shall include a soliciting broker fee payable to retail brokers that are appropriately designated by their tendering holder clients to receive such fee.
(b) In the event that the aggregate principal amount of 2024 Notes tendered for exchange in the 2024 Exchange Offer and the Registered Exchange Offer is less than $380.0 million, the Company shall, no later than April 15, 2024, use an amount of Net Cash Proceeds from one or more issuances of Capital Stock completed on or prior to such date sufficient to repurchase, redeem, repay or pay in full an aggregate principal amount of 2024 Notes (for the avoidance of doubt, at prices that may be at or below 100% of the principal amount thereof) that is at least equal to (x) $380.0 million less (y) the aggregate principal amount of 2024 Notes actually tendered and accepted for exchange in the 2024 Exchange Offer and the Registered Exchange Offer plus (z) any accrued and unpaid interest and any other accrued and unpaid fees/expenses in respect of such 2024 Notes that remain unpaid at the time of repurchase, redemption, prepayment or payment in full.
Section 4.19 Additional Amounts.
(a)All payments by any or each of the Issuer and the Guarantors in respect of the Notes or any Note Guarantee shall be made free and clear of and without any withholding or deduction for or on account of any present or future Taxes (as defined below), unless the withholding or deduction of such Taxes is required by law or the official interpretation thereof, or by the administration thereof. If the Issuer or any Guarantor shall be required by any Non-U.S. Taxing Jurisdiction (as defined below) to withhold or deduct any Taxes from or in respect of any sum payable or treated as payable under the Notes or any Note Guarantee, it will (i) pay such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts receivable by beneficial owners of any Notes after such withholding or deduction equal the respective amounts which would have been receivable by such
beneficial owners in the absence of such withholding or deduction, (ii) make such withholding or deduction, and (iii) pay the full amount withheld or deducted to the relevant tax or other authority in accordance with applicable law, except that no such Additional Amounts will be payable in respect of any Note:
(146)to the extent that such Taxes are imposed or levied by reason of the Holder (or the beneficial owner) having some connection with the Non-U.S. Taxing Jurisdiction other than the mere holding (or beneficial ownership) of such Note or receiving principal or interest payments on the Note or enforcing rights with respect to the Notes (including but not limited to citizenship, nationality, residence, domicile, or existence of a business, permanent establishment, a dependent agent, a place of business or a place of management present or deemed present in the Non-U.S. Taxing Jurisdiction);
(147)to the extent that any Tax is imposed other than by deduction or withholding from payments of principal of or premium, if any, or interest on the Notes;
(148)to the extent that any Tax would not have been imposed but for the failure of the Holder (or beneficial owner) to comply with any certification, identification or other reporting requirement concerning its nationality, residence, identity or connection with the Non-
U.S. Taxing Jurisdiction if (i) compliance is required by applicable law, regulation, administrative practice or treaty as a precondition to exemption from all or part of the Tax, and (ii) the Issuer, any applicable Guarantor or the Trustee, as the case may be, has given the Holders (or beneficial owners) at least 30 days prior notice that they will be required to comply with such requirement;
(149)to the extent that any Tax would not have been imposed but for the failure of the Holder to surrender (where surrender is required) the Note for payment within 30 days after the Issuer or the applicable Guarantor, as the case may be, has made available a payment of principal or interest, provided that the Issuer or such Guarantor, as the case may be, will pay Additional Amounts to which a Holder would have been entitled had the Note been surrendered on the last day of such 30-day period;
(150)to the extent that such Taxes are imposed by reason of an estate, inheritance, gift, personal property, value added, use or sales tax or any similar taxes, assessments or other governmental charges;
(151)to the extent that such Taxes could have been avoided if the Holder of Notes had presented the relevant Note (where presentation is required) to another Paying Agent in a member state of the European Union;
(152)to the extent that such Taxes arise pursuant to section 50a para. 7 of the German Income Tax Act (Einkommensteuergesetz – EstG)
(153)to the extent such Tax is imposed by France on a payment made to a Holder solely because (i) the Holder is incorporated, domiciled or established in, or acting through an office situated in, a non-cooperative state or territory (État ou territoire non coopératif) as set out in the lists referred to in Article 238-0 A of the French tax code, as such lists may be amended from time to time (a “Non-Cooperative Jurisdiction”) or (ii) this payment is made to an account opened in the name of or for the benefit of that Holder of Notes or in a financial institution situated in a Non-Cooperative Jurisdiction; or
(154)any combination of items (1) through (8) above.
(b)Notwithstanding the foregoing, no Additional Amounts will be paid (1) to a Holder that is a fiduciary or a partnership or not the sole beneficial owner of such payment to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such partnership or such beneficial owner would not have been entitled to receive the Additional Amounts had such beneficiary, settlor, member or beneficial owner been the Holder, (2) with respect to any Dutch Taxes withheld or deducted pursuant to the Dutch Withholding Tax Act (Wet bronbelasting 2021), as in effect on November 28, 2022, in respect of interest payments made (or deemed to be made) to “affiliated entities” (within the meaning of the Dutch Withholding Tax Act (Wet bronbelasting 2021)) or (3) with respect to any withholding or deduction that is imposed in connection with Sections 1471-1474 of the Code and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and any other jurisdiction implementing FATCA or any law, regulation or official guidance enacted or issued in any jurisdiction with respect thereto.
“Taxes” means all taxes, withholdings, duties, assessments or governmental charges of whatever nature (including any penalties, interest and other liabilities relating thereto) imposed or levied by or on behalf of the jurisdiction of incorporation or tax residency of the Issuer or any applicable Guarantor or the jurisdiction of incorporation or tax residency of any successor entity to the Issuer or any such Guarantor, or the jurisdictions of any Paying Agents, or any other jurisdiction through which payment is made, in each case other than the United States, or, in each case, any political subdivision thereof or any authority or agency therein or thereof having power to tax (each, a “Non-U.S. Taxing Jurisdiction”).
(c)At least 10 days prior to each date on which any payment under or with respect to the Notes is due and payable (unless such obligation to pay Additional Amounts arises shortly before or after the 10th day prior to such date, in which case it shall be promptly thereafter), if the Issuer or any Guarantor will be obligated to pay Additional Amounts with respect to such payment, it will deliver to the Trustee and the Paying Agent an Officer’s Certificate stating the fact that such Additional Amounts will be payable, the amounts so payable and such other information necessary to enable the Paying Agent to pay such Additional Amounts to Holders on the payment date. Each such Officer’s Certificate shall be relied upon until receipt of a further Officer’s Certificate addressing such matters. The Issuer or any Guarantor, as applicable, will provide the Paying Agent with the official acknowledgment of the relevant taxing authority (or, if such acknowledgment is not available, other reasonable documentation) evidencing any payment of any Taxes in respect of which the Issuer or the Guarantor has paid any Additional Amounts. Copies of such documentation will be made available to the Holders of the Notes or the Paying Agents, as applicable, upon request therefor.
(d)The Issuer and each Guarantor will also pay any present or future stamp, issue, registration, court or documentary taxes or any excise or property taxes, charges or similar levies (including any penalties, interest and other liabilities relating thereto) which arise in any jurisdiction from the execution, delivery, registration, enforcement or the making of payments in respect of the Notes or its Note Guarantee, excluding any such taxes, charges or similar levies imposed by any jurisdiction that is not either (i) the United States (or a political subdivision thereof) or (ii) a Non-U.S. Taxing Jurisdiction, other than those resulting from, or required to be paid in connection with, the enforcement of the Notes or its Note Guarantee following the occurrence of any Default or Event of Default.
(e)All references in this Indenture to principal of and premium, if any, and interest on the Notes will include any Additional Amounts payable by the Issuer or any Guarantor in respect of such principal, premium, if any, and interest, and express mention of the payment of Additional Amounts, if applicable, will not be construed as excluding Additional Amounts where such express mention is not made.
Section 4.20 Limitation on Activities of the Issuer.
The Issuer shall not conduct, transfer, or otherwise engage in any material business or operations and will not own or otherwise hold any material assets other than (1) any action required or, in the good faith judgment of the Company, desirable to maintain its existence, (2) the performance of its obligations under the Superpriority Credit Facility, ABL Facility, 2023 Credit Facility, 2025 Credit Facility, 2025 Notes, New 2L Notes, the Collateral Documents, the Collateral Documents as defined in the 2025 U.S. Notes Indenture, and the Intercreditor Agreements and any other Indebtedness (and any related agreements or collateral documents) Incurred by the Issuer in compliance with this Indenture, (3) any action required or, in the good faith judgment of the Company, desirable in connection with the listing of the Notes, (4) activities incidental to its maintenance and continuance and to any of the foregoing activities, (5) the intercompany loan pursuant to which the Issuer lent the net proceeds from the offering of the Existing Notes to Diebold Germany or any other intercompany loan pursuant to which the Issuer will lend the net proceeds from any other Indebtedness Incurred by the Issuer in compliance with this Indenture to Diebold Germany or any other Subsidiary and (6) any funds received from or at the direction of the Company or any Affiliate of the Company in connection with the performance of its obligations under the Superpriority Credit Facility, ABL Facility, 2023 Credit Facility, 2025 Credit Facility, 2025 Notes, New 2L Notes, the Collateral Documents, the Collateral Documents as defined in the 2025 U.S. Notes Indenture, and the Intercreditor Agreements or any other Indebtedness (and any related agreements or collateral documents) Incurred by the Issuer in compliance with this Indenture.
Section 4.21 Collateral and Guarantee Requirements.
(a)The Issuer, the Company, each Note Party and each Subsidiary of the Company not constituting an Excluded Subsidiary shall have satisfied the Collateral and Guarantee Requirements by or on the Issue Date; provided that to the extent that the Collateral and Guarantee Requirements (other than the execution of the Collateral Documents, delivery of Uniform Commercial Code or PPSA financing statements with respect to perfection of security interests in all assets of the Note Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA of any applicable jurisdiction, delivery of intellectual property security agreements in form for filing with the USPTO, USCO and the Canadian Intellectual Property Office and the delivery of possessory collateral) cannot be satisfied by or on the Issue Date and are not satisfied as of the Issue Date after the Issuer has used commercially reasonable efforts to do so, such unsatisfied requirements shall be required to be satisfied as promptly as practicable after the Issue Date and in any event within the period specified therefor in Appendix D.
(b)The Issuer shall have delivered to the Notes Collateral Agent on the Issue Date,
(i) a completed Perfection Certificate dated as of the Issue Date and signed by an Officer of each of the Issuer and each Note Party, together with all attachments contemplated thereby and (ii) results of (x) searches of the Uniform Commercial Code filings (or equivalent filings, including PPSA filings) and (y) bankruptcy, judgment, tax and intellectual property lien searches requested by the Trustee, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Trustee that the Liens indicated by such financing statements (or other documents) are permitted by hereunder or have been or will be released in connection with the issuance of the Notes on the Issue Date.
(c)Subject to clauses (a) and (b) above, each document (including any UCC, PPSA (or similar) financing statement and intellectual property security agreements and, with respect to any Collateral Document governed by French law, certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Guarantor whose shares are pledged) required by any Collateral Document
or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of the Notes Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Document (unless such Collateral Document provides for any such requirement to be provided at a later point in time), shall be in proper form for filing, registration or recordation and the Trustee have made arrangements for such filing, registration or recordation.
ARTICLE 5 SUCCESSORS
Section 5.01 Merger, Consolidation or Sale of All or Substantially All Assets.
(a)The Company will not consolidate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person unless:
(155)the resulting, surviving or transferee Person shall be the Company;
(156)to the extent any assets of the Person who is merged, consolidated or amalgamated with or into the Company are assets of the type that would constitute Collateral under the Collateral Documents, the Company will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Indenture or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents;
(157)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(158)immediately after giving pro forma effect to such transaction and any related financing transactions, as if such transactions had occurred at the beginning of the applicable four-quarter period,
(A)the Company would be in compliance with the Pro Forma Test Conditions; or
(B)the Consolidated Coverage Ratio of the Company and its Subsidiaries would be equal to or greater than such ratio for the Company and its Subsidiaries immediately prior to such transaction; and
(159)the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, winding up or disposition, and such supplemental indenture and any other supplemental agreements comply with this Indenture.
(b)Notwithstanding clause (4) of Section 5.01(a), to the extent that the Company is the surviving Person:
(160)the Company may consolidate with, merge with or into or transfer all or part of its properties and assets to any Subsidiary (including the Issuer), and any Subsidiary may consolidate with, merge with or into or transfer all or part of its properties and assets to the Company, so long as no Capital Stock of the Subsidiary is distributed to any Person other than the Company; provided that, in the case of a Subsidiary (including the Issuer) that merges into the Company, the Company will not be required to comply with Section 5.01(a)(5); and
(161)the Company may merge with an Affiliate of the Company solely for the purpose of reincorporating or forming the Company in another state of the United States or the District of Columbia, so long as the amount of Indebtedness of the Company and its Subsidiaries is not increased thereby.
(c)The Company shall not permit any Subsidiary Guarantor to consolidate with, amalgamate with or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person (other than to the Issuer or another Guarantor) unless:
(162)(A) if such entity remains a Subsidiary Guarantor, the resulting, surviving, continuing or transferee Person (if not such Subsidiary Guarantor) shall expressly assume, by a supplemental indenture hereto and applicable Collateral Documents in a form reasonably satisfactory to the Trustee and/or the Notes Collateral Agent, as applicable, all the obligations of such Guarantor under its Guarantee;
(B)to the extent any assets of the Person who is merged, consolidated or amalgamated with or into the successor Subsidiary Guarantor are assets of the type that would constitute Collateral under the Collateral Documents, the successor Subsidiary Guarantor will take such action as may be reasonably necessary to cause such property and assets to be made subject to the Lien of the applicable Collateral Documents in the manner and to the extent required in this Indenture or the applicable Collateral Documents and shall take all reasonably necessary action so that such Lien is perfected to the extent required by the applicable Collateral Documents;
(C)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; and
(D)the Company will have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, winding-up or disposition and such supplemental indenture and any other supplemental agreements comply with this Indenture; or
(163)in the event the transaction results in the release of the Subsidiary Guarantor’s Note Guarantee under clause (1)(A) of Section 10.06(a), the transaction is made in compliance with Section 4.16 (it being understood that only such portion of the Net Available Cash as is required to be applied on the date of such transaction in accordance with the terms of this Indenture needs to be applied in accordance therewith at such time).
(d)The Issuer will not consolidate with, amalgamate with, or merge with or into or wind up into, or sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its properties and assets, in one or more related transactions, to any Person unless:
(164)the resulting, surviving, continuing or transferee Person shall be the
Issuer;
(165)[reserved];
(166)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(167)each Guarantor (unless it is the other party to the transactions in accordance with Section 5.01(a), in which case Section 5.01(a) shall apply or, in the case of a transaction with a Subsidiary Guarantor, Section 5.01(c)(1) shall apply) shall have by supplemental indenture confirmed that its Note Guarantee shall apply to the Issuer’s obligations under this Indenture, the Notes, the Collateral Documents and the Intercreditor Agreement;
(168)the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, amalgamation, winding-up or disposition and such supplemental indenture and any other supplemental agreements comply with this Indenture.
(e)For purposes of this Section 5.01, the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Issuer or a Guarantor, as the case may be, which properties and assets, if held by the Issuer or such Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Issuer or such Guarantor on a consolidated basis, will be deemed to be the disposition of all or substantially all of the properties and assets of the Issuer or such Guarantor, as applicable.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
(a)Each of the following is an “Event of Default”:
(169)default in any payment of interest on any Note when due, continued for 30 days;
(170)default in the payment of principal or premium, if any, on any Note when due at its Stated Maturity, upon mandatory or optional redemption, upon required repurchase, upon declaration or otherwise;
(171)failure by the Company, the Issuer or any Subsidiary Guarantor to comply with its obligations under Section 4.18 or Section 5.01;
(172)failure by the Issuer or any Guarantor to comply for 30 days after notice as provided below with any of their obligations under ARTICLE 4 (in each case, other than (A) a failure to purchase Notes, which constitutes an Event of Default under Section 6.01(a)(2), (B) a failure to comply with Section 5.01 which constitutes an Event of Default under Section 6.01(a)(3) or (C) a failure to comply with any of Sections 4.06 or 9.07, each of which constitutes an Event of Default under Section 6.01(a)(5));
(173)failure by the Issuer or any Guarantor to comply for 60 days (or, in the case of a failure to comply with Section 4.06, 120 days) after notice as provided below with its other agreements contained in this Indenture or the Notes;
(174)default under any mortgage, indenture or instrument under which there is issued or by which there is secured or evidenced any Indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Subsidiaries), other than Indebtedness owed to the Company or a Subsidiary, whether such Indebtedness or Guarantee now exists or is created after the Issue Date, which default:
(A)is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness; or
(B)results in the acceleration of such Indebtedness prior to its maturity;
and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $75.0 million or more;
(175)failure by the Company or any Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $75.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days or more after such judgment becomes final;
(176)(i) the Company, the Issuer or a Significant Subsidiary or any group of Subsidiaries (excluding any Immaterial Subsidiaries) that, taken together (as of the date of the latest audited consolidated financial statements of the Company, the Issuer and its Subsidiaries), would constitute a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Laws:
(A)commences proceedings to be adjudicated bankrupt or insolvent;
(B)consents to the institution of bankruptcy or insolvency proceedings against it, or the filing by it of a petition or answer or consent seeking an arrangement of debt, reorganization, dissolution, winding up or relief under applicable Bankruptcy Laws; provided that any of the foregoing actions shall not constitute a Default if this would constitute a breach of section 44 of the German Act on the Stabilisation and Restructuring Framework for Business (StaRUG);
(C)consents to the appointment of a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor, sequestrator, administrator or other similar official of it or for all or substantially all of its property;
(D)makes a general assignment for the benefit of its creditors; or
(E)generally is not paying its debts as they become due;
(ii)a court of competent jurisdiction enters an order or decree under any Bankruptcy Laws that:
(A)is for relief against the Company, the Issuer, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries),
would constitute a Significant Subsidiary, in a proceeding in which the Company, the Issuer, any such Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, is to be adjudicated bankrupt or insolvent;
(B)appoints a receiver, interim receiver, receiver and manager, liquidator, assignee, trustee, monitor, sequestrator, administrator or other similar official of the Company, the Issuer, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary, or for all or substantially all of the property of the Company, the Issuer, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary; or
(C)orders the liquidation, dissolution or winding up of the Company, the Issuer, any Subsidiary that is a Significant Subsidiary or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 consecutive days;
(177)the Note Guarantee of the Company or any Note Guarantee of a Significant Subsidiary or any group of Subsidiary Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary ceases to be in full force and effect (except as contemplated by the terms of this Indenture) or is declared null and void in a judicial proceeding or the Company or any Subsidiary Guarantor that is a Significant Subsidiary or any group of Subsidiary Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant Subsidiary denies or disaffirms its obligations under this Indenture or its Note Guarantee; or
(178)with respect to any Collateral having a Fair Market Value in excess of $50.0 million, individually or in the aggregate, (A) the security interest under the Collateral Documents, at any time, ceases to be a valid and perfected Lien (perfected as or having the priority required by the Collateral Documents and this Indenture) and in full force and effect for any reason other than in accordance with their terms and the terms of this Indenture and such failure continues for 60 days and other than the satisfaction in full of all obligations under this Indenture and discharge of this Indenture, except to the extent that any such loss of perfection or priority results from the limitations of foreign laws, rules and regulations or the application thereof, or from the failure of the Notes Collateral Agent (or, as applicable, the (i) Controlling Senior Representative (as defined in the ABL Intercreditor Agreement), (ii) First Priority Representative (as defined in the Multi Lien Intercreditor Agreement), (iii) Designated First Priority Representative (as deinfed in the Non-Released Multi Lien Intercreditor Agreement, (iv) Controlling Agent (as defined in the First Lien Pari Passu Intercreditor Agreement) or (v) Controlling Agent (as defined in the Junior Lien Pari Passu Intercreditor Agreement)) to maintain possession of certificates or instruments actually delivered to it representing securities pledged under the Collateral Documents or (B) the Company, the Issuer or any Subsidiary Guarantor that is a Significant Subsidiary or any group of Subsidiary Guarantors that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries), would constitute a Significant
Subsidiary asserts, in any pleading in any court of competent jurisdiction, that any such security interest is invalid or unenforceable and such Person fails to rescind such assertion within 60 days.
However, a Default under clauses (4) and (5) of this Section 6.01(a) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes notify the Company of the Default and the Company does not cure such Default within the time specified in clauses (4) and (5) of this Section 6.01(a) after receipt of such notice.
(b)In the event of a declaration of acceleration of the Notes because an Event of Default described in clause (6) of Section 6.01(a) has occurred and is continuing, the declaration of acceleration of the Notes shall be automatically annulled if:
(179)the default triggering such Event of Default pursuant to clause (6) of Section 6.01(a) shall be remedied or cured by the Company or a Subsidiary or waived by the holders of the relevant Indebtedness within 20 days after the declaration of acceleration with respect thereto; and
(180)(A) the annulment of the acceleration of the Notes would not conflict with any judgment or decree of a court of competent jurisdiction and (B) all existing Events of Default, except nonpayment of principal, premium, if any, or interest on the Notes that became due solely because of the acceleration of the Notes, have been cured or waived.
Section 6.02 Acceleration.
(a)If an Event of Default (other than an Event of Default described in clause (8) of Section 6.01(a)) occurs and is continuing, the Trustee by written notice to the Company, specifying the Event of Default, or the Holders of at least 25% in principal amount of the then outstanding Notes by written notice to the Company and the Trustee, may, and the Trustee at the request of such Holders shall, declare the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes to be due and payable immediately. Upon such declaration, such principal, premium, if any, and accrued and unpaid interest, if any, will be due and payable immediately.
(b)Notwithstanding the foregoing, in case an Event of Default under clause (8) of Section 6.01(a) occurs and is continuing, the principal, premium, if any, and accrued and unpaid interest, if any, on all the Notes will become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holders.
(c)The Holders of a majority in principal amount of the outstanding Notes may waive all past defaults (except with respect to nonpayment of principal, premium or interest) and rescind any such acceleration with respect to the Notes and its consequences if (1) such rescission would not conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing Events of Default, other than the nonpayment of the principal, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal, premium, if any, and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder of a
Note in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
The Holders of a majority in principal amount of the outstanding Notes by written notice to the Trustee may on behalf of all Holders waive any existing Default and its consequences hereunder, except:
(1)a continuing Default in the payment of the principal, premium, if any, or interest on any Note held by a non-consenting Holder (including in connection with an Asset Disposition Offer or a Change of Control Offer); and
(2)a Default with respect to a provision that under Section 9.02 cannot be amended without the consent of each Holder affected,
provided that, subject to Section 6.02, the Holders of a majority in principal amount of the then outstanding Notes may rescind an acceleration and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture, but no such waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.05 Control by Majority.
Subject to the terms of the applicable Intercreditor Agreements, the Holders of a majority in principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or the Notes Collateral Agent or of exercising any trust or power conferred on the Trustee or the Notes Collateral Agent. However, the Trustee and the Notes Collateral Agent, as the case may be, may refuse to follow any direction that conflicts with law, this Indenture, the Notes, any Note Guarantee, the Collateral Documents and the applicable Intercreditor Agreements, or that the Trustee or the Notes Collateral Agent determines in good faith is unduly prejudicial to the rights of any other Holder or that would, in its or its counsel’s opinion, involve the Trustee or the Notes Collateral Agent in personal liability. For the avoidance of doubt, the Trustee and the Notes Collateral Agent may refrain from acting in accordance with any instructions of Holders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in this Indenture and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
Section 6.06 Limitation on Suits.
Subject to Section 6.07, no Holder may pursue any remedy with respect to this Indenture or the Notes (subject to the Intercreditor Agreements) unless: (1)such Holder has previously given the Trustee written notice that an Event of Default is continuing;
(2)the Holders of at least 25% in principal amount of the then outstanding Notes have requested the Trustee to pursue the remedy;
(3)such Holders have offered the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(4)the Trustee has not complied with such request within 60 days after the receipt of the request and the offer of security or indemnity; and
(5)the Holders of a majority in principal amount of the then outstanding Notes have not given the Trustee a direction that, in the opinion of the Trustee, is inconsistent with such request within such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes, shall not be impaired or affected without the consent of such Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a)(1) or (2) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer and any other obligor on the Notes for the whole amount of principal, premium, if any, and interest remaining unpaid on the Notes, together with interest on overdue principal and, to the extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent and their agents and counsel.
Section 6.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceedings, the Issuer, the Company, the Subsidiary Guarantors, the Trustee, the Notes Collateral Agent and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
Section 6.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy are, to the extent permitted by law, cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this ARTICLE 6 or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.12 Trustee May File Proofs of Claim.
The Trustee may file proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Notes Collateral Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel) and the Holders of the Notes allowed in any judicial proceedings relative to the Issuer (or any other obligor upon the Notes, including the Guarantors), its creditors or its property and is entitled and empowered to participate as a member in any official committee of creditors appointed in such matter and to collect, receive and distribute any money or other securities or property payable or deliverable on any such claims. Any custodian in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee or Notes Collateral Agent and its agents and counsel, and any other amounts due the Trustee or Notes Collateral Agent under Section 7.07. To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, the Notes Collateral Agent, their agents and counsel, and any other amounts due the Trustee or the Notes Collateral Agent under Section 7.07 out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.13 Priorities.
Subject to the terms of the Collateral Documents and the Intercreditor Agreements with respect to any proceeds of Collateral, if the Trustee collects any money or property pursuant to this ARTICLE 6, pursuant to the foreclosure or other remedial provisions contained in the Collateral Documents or the Intercreditor Agreements or any money or other property distributable in respect of any Guarantor’s Guaranteed Obligations under this Indenture after an Event of Default, it shall pay out the money and property in the following order:
(1)to the Trustee and the Notes Collateral Agent, their agents and attorneys for amounts due under Section 7.07, including payment of all compensation, reasonable expenses and liabilities incurred, and all advances made, by the Trustee and to the Notes Collateral Agent for the costs and expenses incurred under the Collateral Documents and the Intercreditor Agreements;
(2)to Holders for amounts due and unpaid on the Notes for principal, premium, if any, and interest ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal, premium, if any, and interest, respectively; and
(3)to the Issuer or to such party as a court of competent jurisdiction shall direct, including a Guarantor, if applicable.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 6.13. Promptly after any record date is set pursuant to this Section 6.13, the Trustee shall cause notice of such record date and payment date to be given to the Issuer and to each Holder in the manner set forth in Section 13.02. Section 6.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in such suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.14 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in aggregate principal amount of the outstanding Notes.
ARTICLE 7
TRUSTEE AND COLLATERAL AGENT
Section 7.01 Duties of Trustee and Notes Collateral Agent.
(a)If an Event of Default has occurred and is continuing, each of the Trustee and the Notes Collateral Agent shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(b)With respect to the Trustee, except during the continuance of an Event of Default, and at all times with respect to the Notes Collateral Agent:
(1)the duties of the Trustee and the Notes Collateral Agent shall be determined solely by the express provisions of this Indenture, the Collateral Documents and the Intercreditor Agreements and the Trustee and the Notes Collateral Agent need perform only those duties that are specifically set forth in this Indenture, the Collateral Documents and the Intercreditor Agreements and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee and the Notes Collateral Agent; and
(2)in the absence of bad faith on its part, the Trustee and the Notes Collateral Agent may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and the Notes Collateral Agent and conforming to the requirements of this Indenture, the Collateral Documents and the Intercreditor Agreements. However, in the case of any such certificates or opinions which by any provision hereof or the Collateral Documents or the Intercreditor Agreements are specifically required to be furnished to the Trustee or the Notes Collateral Agent, as applicable, the Trustee or the Notes Collateral Agent, as applicable, shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)Neither the Trustee nor the Notes Collateral Agent may be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(1)
this paragraph does not limit the effect of paragraph (b) of this Section 7.01;
(2)neither the Trustee nor the Notes Collateral Agent shall be liable for any
error of judgment made in good faith by a Responsible Officer of the Trustee, unless it is proved in a court of competent jurisdiction that the Trustee or the Notes Collateral Agent was negligent in ascertaining the pertinent facts;
(3)neither the Trustee nor the Notes Collateral Agent shall be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05; and
(4)no provision of this Indenture shall require the Trustee or the Notes Collateral Agent to expend or risk its own funds or otherwise incur any liability (financial or otherwise) in the performance of any of its duties hereunder and the Trustee and Notes Collateral Agent shall not required to take any action that, in their opinion or the opinion of its counsel, may be contrary to any Note Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Bankruptcy Laws.
(d)Whether or not therein expressly so provided, every provision of this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable, that in any way relates to the Trustee or the Notes Collateral Agent is subject to paragraphs (a), (b) and (c) of this Section 7.01.
(e)Neither the Trustee nor the Notes Collateral Agent shall (i) have any duty to take any discretionary action or to exercise any discretionary power, or (ii) be under any obligation to exercise any of the rights or powers under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements at the request or direction of any of the Holders unless such Holders have offered to the Trustee or the Notes Collateral Agent, as applicable, security or indemnity reasonably satisfactory to the Trustee or the Notes Collateral Agent (as applicable) against any loss, liability or expense (which may be greater in extent than that contained in the applicable Note Document and which may include payment in advance).
(f)Neither the Trustee nor the Notes Collateral Agent shall be liable for interest on any money received by it except as the Trustee or the Notes Collateral Agent may agree in writing with the Issuer. Money held in trust by the Trustee or the Notes Collateral Agent need not be segregated from other funds except to the extent required by law.
Section 7.02 Rights of Trustee and Notes Collateral Agent.
(a)Each of the Trustee and the Notes Collateral Agent may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. Neither the Trustee nor the Notes Collateral Agent need investigate any fact or matter stated in the document, but the Trustee and the Notes Collateral Agent, as applicable, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee or the Notes Collateral Agent, as applicable, shall determine in good faith to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney at the sole cost of the Issuer and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(b)Before the Trustee or the Notes Collateral Agent acts or refrains from acting, it may (but is not obliged to) require an Officer’s Certificate or an Opinion of Counsel or both subject to the other provisions of this Indenture. Neither the Trustee nor the Notes Collateral Agent shall be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee and the Notes Collateral Agent may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c)Each of the Trustee and the Notes Collateral Agent may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(d)Neither the Trustee nor the Notes Collateral Agent shall be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture, the Collateral Documents or the Intercreditor Agreements.
(e)Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer or a Guarantor shall be sufficient if signed by an Officer of the Issuer or such Guarantor.
(f)Neither the Trustee nor the Notes Collateral Agent shall be deemed to have notice or knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee or the Notes Collateral Agent, as applicable, has actual knowledge thereof or unless written notice of any event which is in fact such a Default is received by the Trustee or the Notes Collateral Agent, as applicable, at the Corporate Trust Office of the Trustee or the Notes Collateral Agent, as applicable, and such notice references the existence of a Default or Event of Default, the Notes and this Indenture.
(g)In no event shall the Trustee or the Notes Collateral Agent be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee or the Notes Collateral Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(h)The rights, privileges, protections, immunities and benefits given to each of the Trustee and the Notes Collateral Agent, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, each of the Trustee and the Notes Collateral Agent in each of its capacities hereunder and under the Collateral Documents and the Intercreditor Agreements, and by, the Agents and each other agent, custodian and other Person employed to act hereunder or thereunder (including the Agents).
(i)Neither the Trustee nor the Notes Collateral Agent shall at any time be under any duty or responsibility to any Holders to determine whether any Additional Amounts are payable and the amount thereof.
(j)The Trustee and the Notes Collateral Agent may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals or titles of officers authorized at such time to take specified actions pursuant to this Indenture, the Collateral Documents and the Intercreditor Agreements, which Officer’s Certificate may be signed by any person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(k)Neither the Trustee nor the Notes Collateral Agent shall be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(l)Notwithstanding anything herein contained to the contrary, the Trustee and the Notes Collateral Agent may refrain without liability from doing anything that would or might in its opinion be contrary to any law of any state or jurisdiction (including but not limited to the United States or any state or territory forming part of it and England & Wales) or any directive or regulation of any agency of any such state or jurisdiction and may without liability do anything which is, in its opinion, necessary to comply with any such law, directive or regulation.
(m)Neither the Trustee nor the Notes Collateral Agent:
(1)shall be accountable for the use or application by any Person of disbursements properly made by the Trustee or the Notes Collateral Agent in conformity with the provisions of this Indenture, the Notes or the Collateral Documents or of moneys received from the Issuer, the Company or the Guarantors; or
(2)shall be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(n)The Notes Collateral Agent shall not be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other security documents pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other security document pertaining to this matter.
(o)Beyond the exercise of reasonable care in the custody thereof, the Notes Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Notes Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Notes Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
Section 7.03 Individual Rights of Trustee and Notes Collateral Agent.
The Trustee or the Notes Collateral Agent in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer or any Affiliate of the Issuer with the same rights it would have if it were not Trustee or the Notes Collateral Agent. However, in the event that the Trustee acquires a conflicting interest it must eliminate such conflict within 90 days or resign. The Trustee is also subject to Section 7.10.
Section 7.04 Disclaimer.
Neither the Trustee nor the Notes Collateral Agent shall be responsible for and makes no representation as to the validity or adequacy of this Indenture, the Notes, the Collateral Documents or the Intercreditor Agreements, it shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture, it shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee or the Notes Collateral Agent, as the case may be, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication on the Notes.
Section 7.05 Notice of Defaults.
If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee, the Trustee will mail or deliver by electronic transmission to each Holder a notice of the Default within 90 days after it occurs. Except in the case of an Event of Default specified in clauses (1) or (2) of Section 6.01(a), the Trustee may withhold from the Holders notice of any continuing Default if the Trustee determines in good faith that withholding the notice is in the interests of the Holders.
Section 7.06 [Reserved].
Section 7.07 Compensation and Indemnity.
(a)The Issuer and the Guarantors, jointly and severally, shall pay to the Trustee and the Notes Collateral Agent from time to time such compensation for its acceptance of this Indenture and services hereunder and under the Collateral Documents and the Intercreditor Agreements as the parties shall agree in writing from time to time. Neither the Trustee’s nor the Notes Collateral Agent’s compensation shall be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Notes Collateral Agent promptly upon request for all reasonable disbursements, advances and expenses incurred or made by it in addition to the compensation for its services. Such expenses shall include the reasonable compensation, disbursements and expenses of the Trustee’s and the Notes Collateral Agent’s agents and respective counsel (as well as any notarial fees relating to the granting of any Spanish Public Document and registration fees, if any). The Trustee and the Notes Collateral Agent shall provide the Issuer reasonable notice of any expenditure not in the ordinary course of business.
(b)The Issuer and the Guarantors, jointly and severally, shall indemnify each of the Trustee, any predecessor Trustee, the Notes Collateral Agent and any predecessor Notes Collateral Agent and their agents for, and hold the Trustee and the Notes Collateral Agent harmless against, any and all loss, damage, claims, liability or expense (including reasonable attorneys’ fees and expenses and taxes (other than taxes based upon, measured by or determined by the income of the Trustee and the Notes Collateral Agent)) incurred by it in connection with the acceptance or administration of this trust and the performance of its duties hereunder and under the Collateral Documents and the Intercreditor Agreements (including the reasonable costs and expenses of enforcing this Indenture, the Collateral Documents and the Intercreditor Agreements against the Issuer or any Guarantor (including this Section 7.07 and notarial fees relating to any Spanish Public Document, court clerk fees (procurador) (even if their intervention is not mandatory), court costs and any sworn translation costs and together with any applicable VAT)) or defending itself against any claim whether asserted by any Holder, the Issuer or any Guarantor, or liability in connection with the acceptance, exercise or performance of any of its powers or duties hereunder). Each of the Trustee and the Notes Collateral Agent shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Notes Collateral Agent to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim and the Trustee
and the Notes Collateral Agent may have separate counsel and the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee or the Notes Collateral Agent through the Trustee’s or the Notes Collateral Agent’s own willful misconduct or gross negligence.
(c)The obligations of the Issuer and the Guarantors under this Section 7.07 shall survive the satisfaction and discharge of this Indenture or the earlier resignation or removal of the Trustee or the Notes Collateral Agent.
(d)To secure the payment obligations of the Issuer and the Guarantors in this Section 7.07, the Trustee and the Notes Collateral Agent shall have a Lien prior to the Notes on all money or property held or collected by the Trustee and the Notes Collateral Agent, except that held in trust to pay principal and interest on particular Notes. Such Lien shall survive the satisfaction and discharge of this Indenture.
(e)When the Trustee and the Notes Collateral Agent incurs expenses or renders services after an Event of Default specified in Section 6.01(a)(8) occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Laws.
Section 7.08 Appointment of the Notes Collateral Agent.
(a)Each Holder, by accepting and holding a Note (including by accepting a Note following transfer from another Holder), (i) pursuant to Article 2414-bis, third paragraph, of the Italian Civil Code, to the extent applicable, shall be deemed to have agreed and acknowledged the appointment of the Notes Collateral Agent and accepts and is bound by the appointment of the Notes Collateral Agent, to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil Code, to the extent applicable, and, in any event, as mandatario con rappresentanza also pursuant to articles 1704 and 1723, second paragraph of the Italian Civil Code, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, and (ii) consented and agreed to the terms of the Collateral Documents (including, without limitation, the provisions providing for foreclosure and release of the Collateral and authorising the Notes Collateral Agent to enter into any Collateral Document on its behalf) as the same may be in effect or may be amended from time to time in accordance with its terms and authorises and directs the Notes Collateral Agent to enter into the Collateral Documents and to perform its obligations and exercise its rights thereunder in accordance therewith.
(b)The Trustee (acting on behalf and for the benefit of the Holders) hereby irrevocably and unconditionally appoints GLAS Americas LLC as Notes Collateral Agent (agent des sûretés), pursuant to articles 2488-6 to 2488-12 of the French Civil Code, in respect of the French Collateral Documents and the Collateral governed by French law in order to take, register, manage and enforce the Collateral created or purported to be created under the French Collateral Documents. As a result:
(3)the Notes Collateral Agent shall be the title owner (titulaire) of the guarantees and Collateral created or purported to be created under this Indenture and the rights and assets acquired by the Notes Collateral Agent in carrying out its functions shall form a dedicated estate, distinct from the Notes Collateral Agent’s own estate;
(4)in respect of the French Collateral Documents and the Collateral governed by French law, the Notes Collateral Agent shall act in its own name for the benefit of the Trustee (acting for the benefit of the Holders); and
(5)the Notes Collateral Agent shall identify itself as such when acting in
such capacity.
(c)The Notes Collateral Agent shall act in accordance with the powers given to it by law and by the Non-ABL Agreements. If at any time, the Notes Collateral Agent is required to take any action in respect of the French Collateral Documents and the Collateral governed by French law (i) which is outside the scope of the powers granted to it by law or (ii) at a time when its appointment under
Section 7.08(b) is terminated as a result of a pledge enforcement, then the Notes Collateral Agent shall act as agent (mandataire) of each relevant secured party (as mandant).
(d)The Notes Collateral Agent hereby accepts the appointments under Sections 7.08(b) and (c).
(e)The Notes Collateral Agent shall solely act in its capacity as Notes Collateral Agent or for itself (as secured party).
(f)Any change of Notes Collateral Agent appointed pursuant to this Section 7.08 shall be made in accordance with Section 7.08 or in accordance with article 2488-11 of the French Civil Code (remplacement judiciaire).
(g)The Trustee (acting on behalf and for the benefit of the Holders):
(6)confirms its approval of the French Collateral Documents and Collateral governed by French law and irrevocably authorizes, empowers and directs the Notes Collateral Agent to execute the French Collateral Documents and to take any steps, and gather any information, in connection with the preparation of the French Collateral Documents and the perfection, preservation and/or enforcement of the Collateral;
(7)irrevocably authorises, empowers and directs the Notes Collateral Agent to perform the duties and exercise the rights, powers and discretions that are specifically entrusted to it under the Non-ABL Agreements, together with any other rights, powers and discretions which are incidental thereto, and to give a good discharge for any moneys payable under the French Collateral Documents; and
(8)acknowledges and confirms that the Notes Collateral Agent is entitled to take any step to protect the interests of the Secured Parties; however, notwithstanding the provisions of article 2488-9 of the French Civil Code, the Notes Collateral Agent shall not be bound to make the filing of any proof of claim for the benefit of the Trustee (acting on behalf and for the benefit of the Holders), unless otherwise agreed between the Notes Collateral Agent and the Trustee.
(h)Notwithstanding any contrary provision in this agreement, or any other Non- ABL Agreements:
(9)the Notes Collateral Agent shall not hold the benefit of the French Collateral Documents on trust but as agent des sûretés;
(10)no French Guarantor shall undertake to pay any Parallel Debt and the French Collateral Documents shall not secure any Parallel Debt; and
(11)no appointment of additional collateral agent or delegation of powers by the Notes Collateral Agent shall be made in respect of the French Collateral Documents for those
rights and duties which benefit to or are imposed on the Notes Collateral Agent by operation of articles 2488-6 to 2488-12 of the French Civil Code.
(i)The subscription or the acquisition of any Notes by any Holder shall constitute acceptance by such Holder of the appointment of the Notes Collateral Agent for French Law Collateral Documents under the Notes in accordance with the terms of such Section 7.08
Section 7.09 Replacement of Trustee or Notes Collateral Agent.
(a)A resignation or removal of the Trustee or the Notes Collateral Agent and appointment of a successor Trustee or a successor Notes Collateral Agent shall become effective only upon the successor Trustee’s or successor Notes Collateral Agent’s acceptance of appointment as provided in this Section 7.08. The Trustee or the Notes Collateral Agent may resign in writing at any time by giving 30 days’ prior notice of such resignation to the Issuer and be discharged from the trust hereby created by so notifying the Issuer in writing. The Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the Trustee or the Notes Collateral Agent by so notifying the Trustee, the Notes Collateral Agent and the Issuer in writing. The Issuer may remove the Trustee or the Notes Collateral Agent if:
(12)in the case of the Trustee, the Trustee fails to comply with Section 7.10;
(13)the Trustee or the Notes Collateral Agent, as the case may be, is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Laws;
(14)a receiver or public officer takes charge of the Trustee or the Notes Collateral Agent, as the case may be, or its property; or
(15)the Trustee or the Notes Collateral Agent becomes incapable of acting as Trustee or Notes Collateral Agent, respectively, hereunder.
(b)If the Trustee or the Notes Collateral Agent resigns or is removed or if a vacancy exists in the office of Trustee or the Notes Collateral Agent for any reason, the Issuer shall promptly appoint a successor Trustee or a successor Notes Collateral Agent, as the case may be. Within one year after the successor Trustee or successor Notes Collateral Agent takes office, the Holders of a majority in aggregate principal amount of the then outstanding Notes may remove the successor Trustee or the successor Notes Collateral Agent to replace it with another successor Trustee or another successor Notes Collateral Agent appointed by the Issuer.
(c)If a successor Trustee or a successor Notes Collateral Agent does not take office within 30 days after the retiring Trustee or retiring Notes Collateral Agent resigns or is removed, the retiring Trustee or retiring Notes Collateral Agent (at the Issuer’s expense), the Issuer or the Holders of at least 10% in aggregate principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee or successor Notes Collateral Agent, as the case may be.
(d)If the Trustee, after written request by any Holder who has been a Holder for at least six months, fails to comply with Section 7.10, such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(e)A successor Trustee or successor Notes Collateral Agent shall deliver a written acceptance of its appointment to the retiring Trustee or retiring Notes Collateral Agent and to the Issuer. Thereupon, the resignation or removal of the retiring Trustee or retiring Notes Collateral Agent shall become effective, and the successor Trustee or successor Notes Collateral Agent shall have all the rights, powers and duties of the Trustee or the Notes Collateral Agent under this Indenture. The successor Trustee or successor Notes Collateral Agent shall mail a notice of its succession to Holders. The retiring Trustee or retiring Notes Collateral Agent shall promptly transfer all property held by it as Trustee or Notes Collateral Agent to the successor Trustee or successor Notes Collateral Agent; provided that all sums owing to the Trustee or the Notes Collateral Agent hereunder have been paid and such transfer shall be subject to the Lien provided for in Section 7.07. Notwithstanding replacement of the Trustee or the Notes Collateral Agent pursuant to this Section 7.08, the Issuer’s obligations under Section 7.07 shall continue for the benefit of the retiring Trustee or retiring Notes Collateral Agent.
(f)As used in this Section 7.08, the term “Trustee” shall also include each Agent. Section 7.10 Successor by Merger, etc. If the Trustee or the Notes Collateral Agent consolidates, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation or national banking association, the successor corporation or national banking association without any further act shall be the successor Trustee or successor Notes Collateral Agent, subject to Section 7.10.
Section 7.11 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation or national banking association organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition. Section 7.12 Collateral Documents; Intercreditor Agreements.
By their acceptance of the Notes, the Holders hereby authorize and direct the Trustee and the Notes Collateral Agent, as the case may be, to execute and deliver each of the Collateral Documents and each Intercreditor Agreement (including joinder agreements thereto) and any other Collateral Documents in which the Trustee and/or the Notes Collateral Agent, as applicable, is named as a party, including any Intercreditor Agreement or Collateral Documents executed on or after the Issue Date and any amendments, joinders or supplements to any Intercreditor Agreement or Collateral Document permitted by this Indenture (expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of this Indenture, the Note Guarantees or any other document related thereto, all the above with express faculties of self-contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación))). It is hereby acknowledged and agreed that, in so doing, the Trustee and the Notes Collateral Agent are not responsible for the terms or contents of such agreements, or for the validity or enforceability thereof, or the sufficiency thereof for any purpose. Whether or not so expressly stated therein, in entering into, or taking (or forbearing from) any action under the Intercreditor Agreements or any other Collateral Documents, the Trustee and the Notes Collateral Agent each shall have all of the rights, privileges, benefits, immunities, indemnities and other protections granted to it under this Indenture (in addition to those that may be granted to it under the terms of such other agreement or agreements).
The Holders shall, if so requested by the Trustee in relation to any eventual enforcement of any Spanish Collateral Document, (i) grant a power of attorney in favor of the Trustee entitling it to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Collateral Document and (ii) notarize and apostille such power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain).
ARTICLE 8
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
8.03 applied to all outstanding Notes and the Note Guarantees upon compliance with the conditions set forth below in this ARTICLE 8. Section 8.02 Legal Defeasance and Discharge.
(a)Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.02, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be deemed to have been discharged from their obligations with respect to this Indenture, all outstanding Notes and Note Guarantees on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 8.05 and the other Sections of this Indenture referred to in (1) and (2) below, and to have satisfied all of its other obligations under such Notes and this Indenture, including that of the Guarantors (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(16)the rights of Holders to receive payments in respect of the principal, premium, if any, and interest on the Notes when such payments are due, solely out of the trust created pursuant to this Indenture referred to in Section 8.04;
(17)the Issuer’s obligations with respect to the Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and the maintenance of an office or agency for payment and money for Note payments held in trust;
(18)the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
(b)Following the Issuer’s exercise of its Legal Defeasance option, payment of the Notes may not be accelerated because of an Event of Default.
(c)If the Issuer exercises its Legal Defeasance option under this Section 8.02, the Liens on the Collateral will be released and the Note Guarantees in effect at such time will be automatically released.
(d)Subject to compliance with this ARTICLE 8, the Issuer may exercise its Legal Defeasance option under this Section 8.02 notwithstanding the prior exercise of its Covenant Defeasance option under Section 8.03. Section 8.03 Covenant Defeasance.
(a)Upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, the Issuer and the Guarantors shall, subject to the satisfaction of the conditions set forth in Section 8.04, be released from their respective obligations under the covenants contained in Sections 3.10, 4.03, 4.05, 4.06, 4.08, 4.09, 4.10, 4.11, 4.12, 4.14, 4.15, 4.16, and 4.18 and 5.01(a)(4) with respect to the outstanding Notes, and the Guarantors shall be deemed to have been discharged from their obligations with respect to all Note Guarantees, on and after the date the conditions set forth in Section 8.04 are satisfied (“Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to this Indenture and the outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 6.01, but, except as specified above, the remainder of this Indenture, and such Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under Section 8.01 of the option applicable to this Section 8.03, subject to the satisfaction of the conditions set forth in Section 8.04, an Event of Default specified in Section 6.01(a)(3) that resulted solely from the failure of the Company to comply with Section 5.01(a)(4), Section 6.01(a)(4) (only with respect to covenants that are released as a result of such Covenant Defeasance), Section 6.01(a)(5) (only with respect to covenants that are released as a result of such Covenant Defeasance), 6.01(a)(6), 6.01(a)(7), 6.01(a)(8) (solely with respect to Significant Subsidiaries or any group of Subsidiaries that, taken together (as of the date of the latest audited consolidated financial statements of the Company and its Subsidiaries) would constitute a Significant Subsidiary), 6.01(a)(9) and 6.01(a)(10), in each case, shall not constitute an Event of Default.
(b)If the Issuer exercises its Covenant Defeasance option under this Section 8.03, the Liens on the Collateral will be released and the Note Guarantees of Subsidiary Guarantors in effect at such time will be automatically released.
Section 8.04 Conditions to Legal or Covenant Defeasance.
(a)The following shall be the conditions to the exercise of either the Legal Defeasance option under Section 8.02 or the Covenant Defeasance option under Section 8.03 with respect to the Notes:
(20)the Issuer must irrevocably deposit with the Paying Agent, in trust, for the benefit of the Holders, cash in Euros, Government Securities, or a combination thereof, in amounts as will be sufficient without consideration of any reinvestment of interest, to pay the principal, premium, if any, and interest, if any, due on the outstanding Notes on the Stated Maturity or on the applicable redemption date, as the case may be, and the Issuer must specify whether the Notes are being defeased to maturity or to a particular redemption date;
(21)in the case of Legal Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions,
(A)the Issuer has received from, or there has been published by, the U.S.
Internal Revenue Service a ruling, or
(B)since the Issue Date, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel will confirm that, the Holders and beneficial owners of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(22)in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(23)in the case of Legal Defeasance or Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel in the jurisdiction of organization of the Issuer confirming that, subject to customary assumptions and exclusions, the Holders and beneficial owners of Notes will not recognize income, gain or loss for income tax purposes in such jurisdiction as a result of such Legal Defeasance or Covenant Defeasance and will be subject to income tax in such jurisdiction on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance or Covenant Defeasance had not occurred;
(24)no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith) and the deposit will not result in a breach or violation of, or constitute a default under, the ABL Facility, Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures, the 2023 Credit Facility, the 2024 Notes Indenture or any other material agreement or material instrument (other than this Indenture) to which the Issuer or any Guarantor is a party or by which the Issuer or any Guarantor is bound;
(25)the Issuer has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of defeating, hindering, delaying or defrauding any creditors of the Issuer, any Guarantor or others;
(26)the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions), each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with; and
(27)the Issuer has delivered irrevocable instructions to the Trustee to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be (which instructions may be contained in the Officer’s Certificate referred to in clause (7) above).
Section 8.05 Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions.
(a)Subject to Section 8.06, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 8.04 in respect of the outstanding Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer or a Guarantor acting as Paying Agent) as the Trustee may determine, to the Holders of all sums due and to become due thereon in respect of principal, premium, if any, and interest on the Notes, but such money need not be segregated from other funds except to the extent required by law.
(b)The Issuer will pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the cash or Government Securities deposited pursuant to Section 8.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders.
(c)Anything in this ARTICLE 8 to the contrary notwithstanding, the Trustee will deliver or pay to the Issuer from time to time upon the request of the Issuer any money or Government Securities held by it as provided in Section 8.04 which, in the opinion of an Independent Financial Advisor expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 8.04(a)), are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.06 Repayment to the Issuer.
Subject to any applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal, premium, if any, or interest on any Note and remaining unclaimed for two years after such principal, premium, if any, or interest has become due and payable shall be paid to the Issuer on its request or (if then held by the Issuer) shall be discharged from such trust; and the Holder of such Note shall thereafter look only to the Issuer for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in The New York Times or The Wall Street Journal (national edition), notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notification or publication, any unclaimed balance of such money then remaining shall be repaid to the Issuer.
Section 8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. dollars or Government Securities in accordance with Section 8.02 or Section 8.03, as the case may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s and the Guarantors’ obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.02 or Section 8.03 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.02 or Section 8.03, as the case may be; provided that, if the Issuer makes any payment of principal, premium, if any, or interest on any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of Holders.
(a)Notwithstanding Section 9.02, without the consent of any Holder, the Issuer, the Guarantors (except that no existing Guarantor will be required to execute any amendment or supplement of this Indenture that solely relates to changes described in Section 9.01(a)(5)), the Trustee and the Notes Collateral Agent may amend this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements (subject to the terms of the Intercreditor Agreements) to:
(28)cure any ambiguity, omission, defect or inconsistency;
(29)provide for the assumption by a successor entity of the obligations of the Company, the Issuer or any Subsidiary Guarantor under this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements in accordance with Section 5.01;
(30)provide for or facilitate the issuance of uncertificated Notes in addition to or in place of certificated Notes; provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;
(31)comply with the rules of any applicable Common Depositary;
(32)add Guarantors with respect to the Notes or release a Subsidiary Guarantor from its obligations under its Note Guarantee or this Indenture, in each case, in accordance with the applicable provisions of this Indenture;
(33)secure the Notes and the Note Guarantees;
(34)to confirm and evidence the release, termination or discharge of any Lien securing the Notes or the Note Guarantees in accordance with the terms of this Indenture, the Collateral Documents or Intercreditor Agreements;
(35)add covenants of the Company and its Subsidiaries or Events of Default for the benefit of Holders or to make changes that would provide additional rights to the Holders or to surrender any right or power conferred upon the Issuer or any Guarantor;
(36)make any change that does not materially adversely affect the legal rights under this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements of any Holder;
(37)comply with any requirement of the SEC in connection with any qualification of this Indenture under the Trust Indenture Act;
(38)evidence and provide for the acceptance of an appointment of a successor Trustee (provided that the successor Trustee is otherwise qualified and eligible to act as such under the terms of this Indenture) or successor notes collateral agent;
(39)conform the text of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements to any provision of the “Description of the Exchange Notes” section of the Offering Memorandum to the extent that such provision in such
“Description of the Exchange Notes” section was intended to be a verbatim recitation of a provision of this Indenture, the Notes, the Note Guarantees, the Collateral Documents or the Intercreditor Agreements, as confirmed in an Officer’s Certificate delivered to the Trustee; or
(40)make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes as permitted by this Indenture, including, without limitation, to facilitate the issuance and administration of the Notes; provided, however, that (A) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any applicable securities law and (B) such amendment does not materially and adversely affect the rights of Holders to transfer Notes.
(b)The Holders of the Notes will be deemed to have consented for purposes of the Collateral Documents and the applicable Intercreditor Agreements to any of the following amendments, waivers and other modifications to the Collateral Documents and the applicable Intercreditor Agreements:
(41)(A) to add other parties (or any authorized agent thereof or trustee therefor) holding Secured Indebtedness that is Incurred in compliance with the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes Indentures, the 2023 Credit Facility, the 2024 Notes Indenture, the New 2L Notes Indenture and the Collateral Documents and (B) to establish the priority of the Liens on any Collateral securing such Secured Indebtedness under the applicable Intercreditor Agreement with the Liens on such Collateral securing the Obligations under this Indenture, the Notes and the Note Guarantees, and (C) to establish that the Liens on any ABL Priority Collateral securing any Indebtedness replacing the ABL Facility permitted to be Incurred under this Indenture shall be senior to the Liens on such ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Note Guarantees, and that the Liens on any Non-ABL Priority Collateral securing any such Indebtedness shall be junior to the Liens on such Non-ABL Priority Collateral securing any Obligations under this Indenture, the Notes and the Note Guarantees, all on the terms provided for in the ABL Intercreditor Agreement in effect immediately prior to such amendment or other modification; and all proceeds of the Collateral shall be payable to the Notes Collateral Agent and such representatives for any other Pari Passu Secured Indebtedness then outstanding on a pro rata basis based on the aggregate outstanding principal amount of Obligations under this Indenture and the Notes and under any other Pari Passu Secured Indebtedness then outstanding, all on the terms provided for in the applicable Intercreditor Agreement in effect immediately prior to such amendment;
(42)to effectuate the release of assets included in the Collateral from the Liens securing the Notes in accordance with this Indenture or the Collateral Documents if those assets are (A) owned by a Subsidiary Guarantor and that Subsidiary Guarantor is released from its Note Guarantee in accordance with the terms of this Indenture or (B) sold, transferred or otherwise disposed of in a transaction permitted or not otherwise prohibited by this Indenture;
(43)to establish that the Liens on any Collateral securing any Indebtedness refinancing any Secured Indebtedness permitted to be Incurred in accordance with Section 4.09 shall rank pari passu with the Liens on such Collateral securing the Obligations under such replaced Secured Indebtedness and otherwise conform to the Lien priorities in any applicable Intercreditor Agreement; and
(44)upon any cancellation or termination of the ABL Facility without a replacement thereof, to establish that the ABL Priority Collateral (in addition to the Non-ABL Priority Collateral) shall secure the Obligations under this Indenture, the Notes and the Note Guarantees on the same basis as the Non-ABL Priority Collateral pursuant to the Lien priorities
in any applicable Intercreditor Agreement, subject to the terms of the applicable Intercreditor Agreements in effect immediately prior to such amendment or other modification.
(c)Upon the request of the Issuer, and upon receipt by the Trustee of the documents described in Section 13.04, the Trustee and the Notes Collateral Agent shall join with the Issuer and the Guarantors in the execution of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements and stipulations that may be therein contained, but neither the Trustee nor the Notes Collateral Agent shall be obligated to enter into such amended or supplemental indenture that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.02 With Consent of Holders.
(a)Except as provided in Section 9.01 and this Section 9.02 (and subject to the terms of the Intercreditor Agreements), the Issuer, the Guarantors, the Trustee and the Notes Collateral Agent may amend or supplement this Indenture, the Notes, the Note Guarantees, the Collateral Documents and the Intercreditor Agreements with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes) and, subject to Section 6.04 and Section 6.07, any existing Default or Event of Default (other than a Default or Event of Default in the payment of the principal, premium, if any, or interest on the Notes, except a payment default resulting from an acceleration that has been rescinded) or compliance with any provision of this Indenture, the Notes or the Note Guarantees may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding (including, without limitation, consents obtained in connection with the purchase of, or tender offer or exchange offer for, Notes). Section 2.08 and Section 2.09 shall determine which Notes are considered to be “outstanding” for the purposes of this Section 9.02.
(b)Upon the request of the Issuer, and upon the filing with the Trustee and the Notes Collateral Agent of evidence satisfactory to the Trustee and the Notes Collateral Agent of the consent of the Holders as aforesaid, and upon receipt by the Trustee and the Notes Collateral Agent of the documents described in Section 7.02 and Section 13.04, the Trustee and the Notes Collateral Agent shall join with the Issuer and the Guarantors in the execution of such amended or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s or the Notes Collateral Agent’s own rights, duties or immunities under this Indenture or otherwise, in which case each of the Trustee and the Notes Collateral Agent may in their discretion, but shall not be obligated to, enter into such amended or supplemental indenture.
(c)It shall not be necessary for the consent of the Holders under this Section 9.02 to approve the particular form of any proposed amendment, supplement or waiver. It shall be sufficient if such consent approves the substance thereof.
(d)After an amendment, supplement or waiver under this Section 9.02 becomes effective, the Issuer will send to the Holders a notice briefly describing such amendment, supplement or waiver. However, any failure of the Issuer to send such notice to all the Holders, or any defect in the notice, will not impair or affect the validity of any such amendment, supplement or waiver.
(e)Without the consent of each affected Holder, an amendment, supplement or waiver under this Section 9.02 may not (with respect to any Notes held by a non-consenting Holder):
(45)reduce the principal amount of Notes whose Holders must consent to an amendment, supplement or waiver;
(46)reduce the stated rate of interest or extend the stated time for payment of interest on any Note;
(47)reduce the principal of or extend the Stated Maturity of any Note;
(48)waive a Default or Event of Default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the then outstanding Notes with respect to a nonpayment default and a waiver of the payment default that resulted from such acceleration);
(49)reduce the premium payable upon the redemption or repurchase of any Note or change the date on which any Note may be redeemed or repurchased as described in Section 3.07, Section 4.15 and Section 4.16 whether through an amendment or waiver of provisions in the covenants, definitions or otherwise (except amendments to the definitions of “Asset Disposition” and “Change of Control”);
(50)make any Note payable in a currency other than that stated in the Note;
(51)amend the contractual right expressly set forth in this Indenture or the Notes of any Holder to institute suit for the enforcement of any payment on or with respect to such Holder’s Notes;
(52)make any change in the amendment or waiver provisions which require each Holder’s consent;
(53)modify the Note Guarantees in any manner materially adverse to the Holders;
(54)modify or change any provision of this Indenture, any Intercreditor Agreement or the Collateral Documents that (i) adversely affects the ranking as to right of payment (it being understood that the “right of payment” here refers to contractual ranking), Lien priority or payment priority, (ii) has the effect of permitting the creation of any “unrestricted subsidiary” or similar Subsidiary that is not subject to ARTICLE 4 or Section 6.01 of this Indenture or (iii) has the effect of permitting (to the extent not otherwise permitted by the terms of this Indenture as in effect on the Issue Date) the Incurrence of additional Indebtedness in the form of “additional notes” for the purpose of influencing voting thresholds;
(55)modify or change any provision in this Indenture or any Intercreditor Agreement relating to the payment terms or application of proceeds in connection with the Notes, including any payment or application of proceeds waterfalls; or
(56)release all or substantially all of the Collateral or the Guarantees.
(f)In addition, and subject to Section 9.02(e)(10), without the consent of Holders of 66⅔% in aggregate principal amount of the Notes outstanding, no amendment, supplement or waiver may modify any Collateral Document or the provisions in this Indenture relating to the Notes dealing with the Collateral Documents in any matter, taken as a whole, materially adverse to the Holders or otherwise release Collateral in excess of $50.0 million from the Liens securing the Notes other than in accordance with this Indenture, the Collateral Documents and the Intercreditor Agreements. Notwithstanding anything to the contrary herein, to the extent, and solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities, in each case with respect to the Superpriority Credit Facility, the 2025
Credit Facility, the 2025 Notes and the New 2L Notes, may be released with the consent of (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Facility, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the 2025 Credit Facility, and (iii) holders holding in excess of 66 2/3% of the aggregate principal amount of the outstanding 2025 Notes, solely in the event that such lenders and holders determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors. Upon and simultaneously with such release, the priority of Liens on the pledged equity of Diebold Germany shall automatically be changed such that the Lien in favor of the Superpriority Credit Facility is senior to the Lien in favor of the 2025 Credit Facility, the 2025 Notes and (for the avoidance of doubt) the New 2L Notes (it being understood that the Lien on the pledged equity of Diebold Germany securing the New 2L Notes shall at all times be junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes); provided that, no such release will be effective until the applicable proceeding is actually commenced. In addition, and notwithstanding the foregoing, (i) additional Indebtedness that may be secured by Liens senior to the Liens securing the 2025 Credit Facility and the 2025 Notes may be permitted with the consent of Holders holding at least 66 2/3% of the aggregate principal amount of the Notes outstanding under this Indenture and (ii) any breach of the Company’s obligations under Section 4.18 may only be waived with the consent of Holders holding at least 60.1% of the aggregate principal amount of Notes outstanding under this Indenture (other than with respect to the date milestones in Section 4.18(a), which, if the Company has exercised reasonable best efforts to meet such milestones, may be waived for up to 15 days with the consent of Holders holding a majority of the aggregate principal amount of Notes outstanding under this Indenture), provided that, with respect to this subclause (ii), any such waiver or consent is valid only if a corresponding waiver or consent has been granted by each of the Superpriority Credit Facility and the 2025 Credit Facility (and, for the avoidance of doubt, in accordance with the terms of the 2025 U.S. Notes Indenture), in accordance with their respective terms. In addition, without the consent of Holders of 75% in aggregate principal amount of the Notes outstanding, no amendment, supplement, or waiver may modify or waive any of the Guarantor Release Protection Provisions.
(g)A consent to any amendment, supplement or waiver of this Indenture, the Notes or the Note Guarantee by any Holder given in connection with a tender of such Holder’s Notes will not be rendered invalid by such tender.
Section 9.03 [Reserved].
Section 9.04 Revocation and Effect of Consents.
(a)Until an amendment, supplement or waiver becomes effective, a consent to it by a Holder of a Note is a continuing consent by the Holder of a Note and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder of a Note or subsequent Holder of a Note may revoke the consent as to its Note if the Trustee receives written notice of revocation before the date the waiver, supplement or amendment becomes effective. An amendment, supplement or waiver that is effective in accordance with its terms and thereafter binds every Holder.
(b)The Issuer may, but shall not be obligated to, fix a record date pursuant to Section 1.04 for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver.
Section 9.05 Notation on or Exchange of Notes.
(a)The Trustee may place an appropriate notation about an amendment, supplement or waiver on any Note thereafter authenticated. The Issuer in exchange for all Notes may issue and the
Trustee shall, upon receipt of an Authentication Order, authenticate new Notes that reflect the amendment, supplement or waiver.
(b)Failure to make the appropriate notation or issue a new Note shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.06 Trustee and Notes Collateral Agent to Sign Amendments, etc.
(a)The Trustee or the Notes Collateral Agent, as the case may be, shall sign any amendment, supplement or waiver to this Indenture authorized pursuant to this ARTICLE 9 if the amendment, supplement or waiver does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Notes Collateral Agent, as the case may be. In executing any amendment, supplement or waiver to this Indenture, the Trustee and the Notes Collateral Agent shall receive and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.04, an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement or waiver is authorized or permitted by this Indenture and that such amendment, supplement or waiver is the valid and binding obligation of the Issuer and any Guarantor party thereto, enforceable against them in accordance with its terms, subject to customary exceptions, and complies with the provisions hereof.
(b)The Notes Collateral Agent shall sign any amendment, supplement, consent or waiver authorized pursuant to any of the Collateral Documents or Intercreditor Agreements in accordance with the terms thereof (including, without limitation, without the further consent or agreement of the Holders if so provided in such Collateral Document or the Intercreditor Agreements or otherwise in accordance with Section 9.01(b) of this Indenture) if the amendment, supplement, consent or waiver does not adversely affect the rights, duties, liabilities or immunities of the Notes Collateral Agent. In executing any amendment, supplement, consent or waiver to any of the Collateral Documents or the Intercreditor Agreements, the Notes Collateral Agent shall receive and (subject to Section 7.01 hereof) shall be fully protected in relying upon an Officer’s Certificate and an Opinion of Counsel stating that the execution of such amendment, supplement, consent or waiver is authorized or permitted by the applicable Collateral Document and/or the Intercreditor Agreements, as the case may be, and complies with the provisions thereof.
Section 9.07 Payments for Consent.
The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Indenture or the Notes unless such consideration is offered to all Holders and is paid to all Holders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment; provided that this Section 9.07 shall not be breached if such consents, waivers or amendments are sought in connection with an exchange offer where participation in such exchange offer is limited to Holders who are (i) “qualified institutional buyers,” within the meaning of Rule 144A, (ii) institutional “accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act, or (iii) non-U.S. persons within the meaning of Regulation S then such consideration need only be offered to all Holders to whom the exchange offer is made and to be paid to all such Holders that consent, waive or agree to amend in such time frame.
ARTICLE 10
GUARANTEES
Section 10.01 Guarantee.
(a)Subject to this ARTICLE 10 and the Collateral and Guarantee Requirements, each of the Guarantors hereby, jointly and severally, irrevocably and unconditionally guarantees, on a senior basis, to each Holder and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Notes or the obligations of the Issuer hereunder or thereunder, that: (1) the principal, premium, if any, and interest on the Notes shall be promptly paid in full when due, whether at Stated Maturity, by acceleration, redemption or otherwise, and interest on the overdue principal and interest on the Notes, if any, if lawful, and all other Obligations of the Issuer to the Holders or the Trustee hereunder or under the Notes shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (2) in case of any extension of time of payment or renewal of any Notes or any of such other obligations, that same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at Stated Maturity, by acceleration or otherwise collectively, the “Guaranteed Obligations.” Failing payment by the Issuer when due of any amount so Guaranteed or any performance so Guaranteed for whatever reason, the Guarantors shall be jointly and severally obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
(b)The Guarantors hereby agree that their obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder with respect to any provisions hereof or thereof, the recovery of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of a guarantor. Each Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenants that this Note Guarantee shall not be discharged except by complete performance of the obligations contained in the Notes and this Indenture, or pursuant to Section 10.06.
(c)Each of the Guarantors also agrees, jointly and severally, to pay any and all costs and expenses (including reasonable attorneys’ fees and expenses) Incurred by the Trustee or any Holder in enforcing any rights under this Section 10.01.
(d)If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantors or any custodian, trustee, liquidator or other similar official acting in relation to the Issuer or the Guarantors, any amount paid either to the Trustee or such Holder, this Note Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
(e)Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any obligations Guaranteed hereby until payment in full of all obligations Guaranteed hereby. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations Guaranteed hereby may be accelerated as provided in ARTICLE 6 for the purposes of this Note Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations Guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations as provided in ARTICLE 6, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantors for the purpose of this Note Guarantee. The
Guarantors shall have the right to seek contribution from any non-paying Guarantor so long as the exercise of such right does not impair the rights of the Holders under the Note Guarantees.
(f)Subject to Section 11.07(b), each Note Guarantee shall remain in full force and effect and continue to be effective should any petition or proceeding be filed by or against the Issuer or any Guarantor for liquidation or reorganization, should the Issuer or any Guarantor become insolvent or make an assignment for the benefit of creditors or should a receiver, trustee, interim receiver, monitor or other similar official be appointed for all or any significant part of the Issuer’s or any Guarantor’s assets, and shall, to the fullest extent permitted by law, continue to be effective or be reinstated, as the case may be, if at any time payment and performance of the Notes are, pursuant to applicable law, rescinded or reduced in amount, or must otherwise be restored or returned by any obligee on the Notes or the Note Guarantees, whether as a “voidable preference,” “fraudulent transfer,” “transfer at undervalue” or otherwise, all as though such payment or performance had not been made. In the event that any payment or any part thereof, is rescinded, reduced, restored or returned, the Notes shall, to the fullest extent permitted by law, be reinstated and deemed reduced only by such amount paid and not so rescinded, reduced, restored or returned.
(g)In case any provision of any Note Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(h)Each payment to be made by a Guarantor in respect of its Note Guarantee shall be made without set-off, counterclaim, reduction or diminution of any kind or nature.
(i)The Note Guarantees will be secured by Liens, with the priority of such Liens conforming to the Lien priorities in any applicable Intercreditor Agreement, subject to Permitted Liens, on the Collateral of each applicable Guarantor (which Collateral will also secure the ABL Facility, the Superpriority Credit Facility, the New 2L Notes, the 2025 Credit Facility, the 2025 U.S. Notes and, other than with respect to the Released Domestic Collateral and the Foreign Collateral, the 2023 Credit Facility, with the priority of such Liens in each case conforming to the Lien priorities in any applicable Intercreditor Agreement).
(j)Notwithstanding anything to the contrary herein, with respect to any Covered Guarantor that is restricted or prohibited from Guaranteeing the Notes on the Issue Date due to applicable works council or similar ongoing processes, such Covered Guarantor will promptly execute a supplemental indenture following the completion of such process to provide a Guarantee of the Notes to the extent permitted following such processes and required by the terms of this Indenture.
(k)For the avoidance of doubt, no French Guarantor shall be under any obligation to provide a Note Guarantee or to grant a security interest on any of its assets to secure such Note Guarantee if it is determined by such French Guarantor that such Note Guarantee or the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered) where such opinion has not been delivered (or is not deemed delivered).
Section 10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a preference, fraudulent conveyance, fraudulent transfer or a transfer at undervalue for purposes of Bankruptcy Laws, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to any Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each
Guarantor shall be limited to the maximum amount as will, after giving effect to such maximum amount and all other contingent and fixed liabilities of such Guarantor that are relevant under such laws and after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under this ARTICLE 10, result in the obligations of such Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under applicable law.
For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Indenture, the Notes or any Note Guarantee (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
If any provision of this Indenture, the Notes, any Note Guarantee or other obligations arising pursuant to this Indenture would oblige any Canadian Note Party to make any payment of interest or other amount payable to any Holder in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Holder of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Holder of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Holder which would constitute interest for purposes of section 347 of the Criminal Code (Canada).
Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Holder shall have received an amount in excess of the maximum permitted by section 347 of the Criminal Code (Canada), the applicable Canadian Note Party shall be entitled to obtain reimbursement from such Holder in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such Holder to such Canadian Note Party.
Each Guarantor that makes a payment under its Note Guarantee will be entitled upon payment in full of all Guaranteed Obligations under this Indenture to a contribution from each other Guarantor in an amount equal to such other Guarantor’s pro rata portion of such payment based on the respective net assets of all the Guarantors at the time of such payment, determined in accordance with GAAP.
In particular,
(a)the Note Guarantee granted by any German Guarantor and of any payment obligations (together, the "Enforcement of Claims") are restricted if and to the extent (i) the enforcement proceeds of an Enforcement of Claims are applied in satisfaction of any liability of such German Guarantor's direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (other than the liabilities of any Subsidiary of the German Guarantor) and (ii) such enforcement would cause the amount of the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) Net Assets, as adjusted pursuant to the following provisions, to fall below the amount of its registered share capital (Stammkapital) (Begründung einer Unterbilanz) or to increase any already existing capital impairment (Vertiefung einer Unterbilanz) or a violation of sections 30 and 31 of the German Limited Liability Company Act
(GmbHG), (each such event is hereinafter referred to as a "Capital Impairment"). For the purposes of the calculation of a Capital Impairment, the following balance sheet items shall be adjusted as follows:
(i)the amount of any increase of the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) registered share capital that has been effected after the date of this Agreement (or, if at a later point, the accession thereto by the relevant German Guarantor as a Guarantor) effected without prior written consent of the Trustee shall be deducted from the German GmbH Guarantor's (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) registered share capital;
(ii)loans provided to the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) the Company or any of its Subsidiaries shall be disregarded if and to the extent such loans are subordinated or are considered subordinated by operation of law at least into the rank pursuant to Section 39 para 2 of the German Insolvency Code (Insolvenzordnung);
(iii)loans or other contractual financial liabilities incurred in violation of the provisions of the Note Documents shall be disregarded;
(iv)assets of the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner's) shall be disregarded to the extent profits would be prohibited from distribution pursuant to section 268 paragraph (8) of the German Commercial Code (Handelsgesetzbuch); and
(v)the amount of non-distributable assets according to section 253 paragraph (6) or section 272 paragraph (5) of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets.
(vi)the costs of any Auditor's Determination (as defined below) shall be taken into account in calculating the Net Assets.
In a situation where a Capital Impairment would occur in relation to a German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) after satisfaction (in whole or in part) of the relevant payment demand under this Note Guarantee or this Indenture, the German Guarantor shall without undue delay (but no later than eight (8) weeks after occurrence of such situation, unless an extension of such period is granted by the Trustee), to the extent legally permitted, dispose of all assets which are not necessary for its business (nicht betriebsnotwendig) where the relevant assets are shown in the balance sheet of the German Guarantor with a book value significantly lower than the market value of such assets (each such asset a "Relevant Asset"), unless such disposal would not be commercially justifiable. The relevant German Guarantor shall, within ten (10) Business Days upon receipt of a written request from the Trustee relating to any Relevant Asset which is not being sold pursuant to the preceding sentence, provide the Trustee with reasonably detailed information as to why it considers the sale of such Relevant Asset not to be commercially justifiable. In the latter case, the relevant German Guarantor and the Trustee will liaise with each other and the relevant German Guarantor shall use its best efforts to make further attempts to dispose of such Relevant Asset on more beneficial terms and keep the Trustee informed about its progress on a continuous basis.
The limitation pursuant to this Section 10.02(a) shall apply, subject to the following requirements, if following a demand for payment by the Trustee under this Note Guarantee or this Indenture, the German Guarantor notifies the Trustee ("Management Notification") within 15 Business Days upon receipt of the relevant demand that a Capital Impairment would occur (setting out in
reasonable detail to what extent a Capital Impairment would occur and providing an estimation of the net proceeds realization along with the calculations / information on which such estimate is based, or other measures undertaken in accordance with the mitigation provisions set out above). If the Management Notification is contested by the Trustee, the German Guarantor undertakes (at its own cost and expense) to arrange for the preparation of a balance sheet by its auditors in order to have such auditors determine whether (and if so, to what extent) any payment under this Note Guarantee or this Indenture would cause a Capital Impairment (the "Auditor's Determination"). The Auditor's Determination shall be prepared, taking into account the adjustments set out above in relation to the calculation of a Capital Impairment, by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. The German Guarantor shall provide the Auditor's Determination to the Trustee within twenty-five (25) Business Days from the date on which the Trustee contested the Management Notification in writing. The Auditor's Determination shall be binding on the German Guarantor and the Secured Parties.
Notwithstanding the above, the provisions of this Section 10.02(a) shall not apply:
(i)if the German Guarantor is (i) party as dominated entity (beherrschtes Unternehmen) of a domination agreement (Beherrschungsvertrag) and/or a profit and loss transfer agreement (Gewinnabführungsvertrag) pursuant to section 30 para 1 sentence 2 of the German Limited Liability Company Act (GmbHG), and (ii) it is to be expected (based on information available to the managing directors of the German Guarantor, interpreted by applying the due care of a prudent businessman (Sorgfalt eines ordentlichen Geschäftsmannes)) that the relevant German Guarantor will be able to recover the annual loss (Jahresfehlbetrag) from the relevant dominating entity pursuant to Section 302 of the German Stock Corporation Act (Aktiengesetz) after the Note Guarantee or other payment obligation under this Indenture has been enforced against the German Guarantor or the German Federal Court of Justice has ruled that only limb (a) is required to avoid a violation of sections 30, 31 German Limited Liability Company Act (GmbHG);
(ii)if the German Guarantor has a recourse right (Rückgriffsanspruch) towards its direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) which is fully recoverable (werthaltig) at the time of the Enforcement of Claims; or to any amounts borrowed under the Note Documents to the extent the proceeds of such borrowing are on- lent to the German Guarantor or its Subsidiaries to the extent that any amounts so on-lent are still outstanding at the time the relevant demand is made against the German Guarantor;
(b)with respect to any French Guarantor, notwithstanding any other provision of this Indenture, the Note Guarantee and the obligations and liabilities of any French Guarantor under this Note Guarantee are subject to the following limitations:
(i)the obligations and liabilities of any French Guarantor under this Indenture and the Note Guarantee will not include any obligation or liability which, if incurred, would constitute financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/or a misuse of assets and/or abuse of power, within the meaning of articles L. 241-3,
L. 242-6 and L. 244-1 of the French Commercial Code or any other law or regulation having the same effect or any interpretation of such laws and/or regulations by the French courts (as the case may be);
(ii)the obligations and liabilities of any French Guarantor under this Indenture and the Note Guarantee shall be limited at any time to:
(57)in respect of the Guaranteed Obligations under this Note Guarantee and of any other party hereto which is its direct or indirect Subsidiary, all amounts which will be due by such party (which is its direct or indirect Subsidiary) as issuer (if it is not a French party), or as issuer and/or subject to the provisions of the paragraph below, as Guarantor (as long such party is a French Guarantor) under this Note Guarantee and any other loan, credit and guarantee documents to which it is a party; and
(58)in respect of the Guaranteed Obligations under this Note Guarantee and of any party hereto which is not a direct or indirect Subsidiary of the relevant French Guarantor (a “Guaranteed Obligor”), the aggregate of all amounts borrowed directly or indirectly by any such Guaranteed Obligor under this Note Guarantee to the extent any such amount(s) will be on-lent (directly or indirectly) or otherwise made available to the relevant French Guarantor or its direct or indirect Subsidiaries (including, but not limited to, by way of intercompany loan agreements or similar arrangements whether direct or indirect) plus any accrued and unpaid interest, costs and fees in respect of or attributable to that on- lending, and which will be outstanding on the date a payment is to be made in respect of the Guaranteed Obligations of the relevant Guaranteed Obligor by the relevant French Guarantor under this Note Guarantee (it being specified that any payment made by the French Guarantor under this Note Guarantee in respect of that Guaranteed Obligor’s payment obligations under this Note Guarantee shall automatically extinguish, pro tanto, the payment obligations under the relevant intercompany loan agreements or similar arrangements referred to above).
(iii)For the purposes of this Section “Subsidiary” means, in relation to any company, another company which is controlled by it within the meaning of article L. 233-3 of the French Commercial Code.
(iv)It is acknowledged that such French Guarantor is not acting jointly and severally with the other Guarantors and shall not be considered as “co-débiteur solidaire” as to their obligations pursuant to the guarantee granted in accordance with the provisions of this Note Guarantee.
(c)the Guarantee of an Italian Guarantor shall not exceed at any time the sum of: (x) the aggregate principal amount of any amount made available to the relevant Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359, paragraph 1, numbers 1 and/or 2, of the Italian Civil Code) by using the proceeds of the Notes; and (y) the aggregate principal amount of any intercompany loans or other financial support in any form (such term, for the avoidance of doubt, not including equity contributions), advanced or made available to such Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359 of the Italian Civil Code) by the Issuer or any Guarantor (whether directly or indirectly) on or following the Issue Date, less the aggregate at that time of (I) all amounts paid by such Italian Guarantor under this Note Guarantee and (II) all amounts recovered by any secured parties under any other security document under which the Italian Guarantor acts as security provider of the relevant collateral. Notwithstanding any provision to the contrary herein, (A) if and to the extent the guarantee of the Italian Guarantor under this Note Guarantee in respect of the Notes and/or this Indenture would result in a breach of any Italian provisions relating to financial assistance, including articles 2358 and 2474, as applicable, of the Italian Civil Code, applicable to that Italian Guarantor, the
Italian Guarantor will be deemed to have no liability hereunder and the Note Guarantee of such Italian Guarantor in respect thereof shall not be in force and effect ab initio, provided that the Note Guarantee given by the Italian Guarantor will not guarantee any amount under the Notes whose purpose or actual use is, directly or indirectly, to finance (and/or refinance) (i) the acquisition of the Italian Guarantor (and/or of any Controlling Person of the Italian Guarantor) and/or (ii) the subscription of an equity interest of the Italian Guarantor (and/or of any Controlling Person of the Italian Guarantor) and/or (iii) the payment of any interest, fees, costs and expenses, stamp, registration or other taxes in connection therewith and/or (iv) any existing indebtedness incurred for the purposes of (i), (ii) and (iii) above; and
(B) in order to comply with the mandatory provisions of Italian law in relation to (x) maximum interest rates (including the Italian Usury Law and article 1815 of the Italian Civil Code), and (y) capitalization of interests (including article 1283 of the Italian Civil Code and article 120 of the Italian Legislative Decree No, 385 of 1 September 1993), the obligations of the Italian Guarantor under this Note Guarantee shall not include, and shall not extend to (1) any interest qualifying as usurious pursuant to the Italian Usury Law and (2) any interest on overdue amounts compounded in violation of the provisions set forth by article 1283 of the Italian Civil Code and/or article 120 of the Italian Banking Law, respectively.
Without prejudice to what stated under item (b)(ii) above, in any event, (i) pursuant to article 1938 of the Italian Civil Code, the maximum amount that an Italian Guarantor may be required to pay in respect of its obligations under this Note Guarantee shall not exceed Euro 4,000,000.00 to be considered as a global cap applicable, without duplication, to such Italian Guarantor’s obligations under this Note Guarantee and any security and/or guarantee granted by such Italian Guarantor to secure and/or guarantee the obligations of any entity other than such Italian Guarantor under any of the Superpriority Credit Facility, the ABL Facility, the 2025 Credit Facility, the 2023 Credit Facility, the 2025 Indentures or the 2024 Notes Indenture, the Notes or this Indenture, provided that such cap will not apply to any own debt obligations of such Italian Guarantor as borrower under the ABL Facility; (ii) the aggregate amount of interest guaranteed by such Italian Guarantor in respect of any Notes will be at any time equal to the interest then outstanding in respect of the principal amount of any Notes guaranteed by such Italian Guarantor at that time; and (iii) it is hereby expressly acknowledged and agreed that, notwithstanding any provision to the contrary under this Agreement, in no event parallel debt or trust provisions under this Agreement shall apply to any Collateral or guarantee granted by such Italian Guarantor.
Moreover, for the purposes of the transparency provisions set forth in the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari.
Correttezza delle relazioni tra intermediari e clienti) applicable to transactions and banking and financial services issued by Bank of Italy, as following amended and integrated, each Italian Guarantor hereby acknowledges and confirms that: (i) each of them has appointed and has been assisted by its respective legal counsels in connection with the negotiation, preparation and execution of this Indenture; and this Indenture, and all of its terms and conditions have been specifically negotiated in all their aspects (oggetto di trattativa individuale) between the parties hereof.
(d)Diebold Nixdorf S.L. will not cover those obligations or liabilities which, if Guaranteed, will constitute an infringement of Spanish financial assistance laws in accordance with Articles 143 and 150 of the Spanish Companies Act or in any other legal provision that may substitute such Articles 143 and/or 150 or be applicable to any Spanish Guarantor in respect of such financial assistance.
(e)any Guarantor incorporated under the laws of Sweden under this Indenture (including the obligation to indemnify) shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) in force from time to time regulating unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act and financial assistance and other prohibited loans,
prohibited security and prohibited guarantees pursuant to Chapter 21, Sections 1 to 3 and 5, and it is understood that the obligations and liabilities of each Guarantor incorporated in Sweden under this Indenture only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.
(f)notwithstanding any provision to the contrary in this Indenture, the liability of the Belgian Guarantor expressed to be assumed in Section 10.01 for the obligations of the Company, which is not a direct or indirect Subsidiary of that Belgian Guarantor will be limited to the greater of: (a) an amount equal to 90 percent of the Net Assets of the Belgian Guarantor calculated on the basis of its latest available annual financial statements at the date of this Indenture and (b) an amount equal to 90 percent of the Net Assets of that Belgian Guarantor at the date of the most recent audited annual financial statements of that Belgian Guarantor available on the date on which the relevant demand under this Section 10 is made; and (c) the highest amount of On-Lending to that Belgian Guarantor and its subsidiaries outstanding at any time between the date of this Indentureand the date on which a demand is made against it hereunder (the “Belgian Maximum Guaranteed Amount”). For the avoidance of doubt, any guarantee granted by a Belgian Guarantor shall not include any liability to the extent it would constitute unlawful financial assistance, within the meaning of article 5:152, 6:118 and 7:227 of the Belgian Companies and Associations Code (or any equivalent and applicable provisions in any relevant jurisdiction). The limitations set out in this Section 10.02 shall apply mutatis mutandis to any Lien granted by the relevant Belgian Guarantor and to any guarantee, undertaking, obligation, indemnity and payment, including (but not limited to) distributions, cash sweeps, credits, loans and set-offs, pursuant to or permitted by the loan documents and made by that Belgian Guarantor. For the avoidance of doubt, any payment made by a Belgian Guarantor in respect of the Company, which is not a direct or indirect Subsidiary of the Belgian Guarantor shall reduce the Belgian Maximum Guaranteed Amount.
(g)the Guarantee granted by any Polish Guarantor will be subject to the following limitations: (i) the guarantee will not apply to any liability to the extent that it would result in breaching Article 189 § 2 of the Polish Commercial Companies Code in the form of reduction of the assets required for the coverage of the total nominal capital or the repayment of capital as prohibited under Article 189 § 2 of the Polish Commercial Companies Code or similar provisions of the Polish Commercial Companies Code; and (ii) to the extent the liability of a Polish Guarantor under this Indenture is considered a financial liability within the meaning of Article 11 § 2 of the Polish Insolvency Act dated 28 February 2003, the liability of a Polish Guarantor shall be limited so that it does not result in the insolvency (niewypłacalność) of a Polish Guarantor within the meaning of Article 11 § 2 of the Polish Insolvency Act or in the insolvency within the meaning of Article 6 section 3 of the Polish Restructuring Act. The limitation as described above in this Section will not apply if one or more of the following circumstances occur: (i) any Event of Default is continuing, irrespective of whether such Event of Default occurs before or after a Polish Guarantor becomes insolvent (niewypłacalny) within the meaning of Article 11 paragraph 2 of the Polish Insolvency Act or Article 6 of the Polish Restructuring Act; (ii) the liabilities of a Polish Guarantor (other than those under this Note Guarantee) result in its insolvency (niewypłacalność) within the meaning of Article 11 paragraph 2 of the Polish Bankruptcy Law or Article 6 of the Polish Restructuring Act; or (iii) Polish law is amended in such a manner that over-indebtedness (nadmierne zadłużenie) defined in Article 11 paragraph 2 of the Polish Insolvency Act (as in force on the date of this Indenture) no longer gives grounds for declaration of bankruptcy or obliges the representatives of a Polish Guarantor to file for bankruptcy.
Section 10.03 Execution and Delivery.
(a)To evidence its Note Guarantee set forth in Section 10.01, each Guarantor hereby agrees that this Indenture shall be executed on behalf of such Guarantor by an Officer or person holding an equivalent title. (b)Each Guarantor hereby agrees that its Note Guarantee set forth in Section 10.01 shall remain in full force and effect notwithstanding the absence of the endorsement of any notation of such Note Guarantee on the Notes. (c)If an Officer whose signature is on this Indenture no longer holds that office at the time the Trustee authenticates the Note, the Note Guarantees shall be valid nevertheless.
(d)The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Note Guarantee set forth in this Indenture on behalf of the Guarantors.
(e)If required by Section 4.11, the Issuer shall cause any newly created or acquired Subsidiary to comply with the provisions of Section 4.11 and this ARTICLE 10, to the extent applicable. Section 10.04 Subrogation.
Each Guarantor shall be subrogated to all rights of Holders against the Issuer in respect of any amounts paid by any Guarantor pursuant to the provisions of Section 10.01; provided that, if an Event of Default has occurred and is continuing, no Guarantor shall be entitled to enforce or receive any payments arising out of, or based upon, such right of subrogation until all amounts then due and payable by the Issuer under this Indenture or the Notes shall have been paid in full.
Section 10.05 Benefits Acknowledged.
Each Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that the Guarantee and waivers made by it pursuant to its Note Guarantee are knowingly made in contemplation of such benefits.
Section 10.06 Release of Note Guarantees.
(a)A Note Guarantee by a Subsidiary Guarantor shall be automatically and unconditionally released and discharged, and no further action by such Subsidiary Guarantor, the Issuer or the Trustee shall be required for the release of such Subsidiary Guarantor’s Note Guarantee, upon:
(59)(A) any sale, assignment, transfer, conveyance, exchange or other disposition (by merger, amalgamation, consolidation or otherwise) of the Capital Stock of such Subsidiary Guarantor after which the applicable Subsidiary Guarantor is no longer a Subsidiary, which sale, assignment, transfer, conveyance, exchange or other disposition is made in compliance with the provisions of this Indenture;
(A)[reserved];
(B)[reserved];
(C)the consent of the Holders in accordance with ARTICLE 9;
(D)the Issuer’s exercise of its Legal Defeasance option or Covenant Defeasance option in accordance with ARTICLE 8; or
(E)the satisfaction and discharge of the Issuer’s obligations under this Indenture in accordance with the terms of this Indenture; and
(60)in the case of clauses (a)(1)(A), (D), (E) and (F) only, such Subsidiary Guarantor delivering to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to such transaction or release have been complied with.
(b)At the written request of the Issuer, the Trustee shall execute and deliver any documents reasonably required in order to evidence such release and discharge in respect of the applicable Note Guarantee of a Subsidiary Guarantor.
(c)Notwithstanding the foregoing, in the event that any released Subsidiary Guarantor (in the case of Section 10.06(a)(1)( D)) thereafter borrows money or Guarantees any other Indebtedness for borrowed money of the Issuer or any Guarantor, the terms of the consent described in Section 10.06(a)(1)(D) may provide that such former Subsidiary Guarantor shall again provide a Note Guarantee if required pursuant to Section 4.11.
Section 10.07 Spanish Law Particularities.
(a)Each Spanish Guarantor acknowledges that the Guaranteed Obligations under this Indenture shall constitute, when due and payable under the relevant agreements from which they arise, liquid, due and payable obligations of such Spanish Guarantor (deuda líquida y exigible).
(b)Each Spanish Guarantor acknowledges that the Note Guarantee provided by it under this Article 10 must be construed as a first demand guarantee (garantía a primera demanda) and not as a guarantee (fianza) of those detailed in Section 1,830 et seq. of the Spanish Civil Code, and, therefore, the benefits of preference (excusión), order (orden) and division (división) shall not be applicable.
(c)For the purposes of articles 399.2, 627 and 686.2 of the Spanish Insolvency Law, each Spanish Guarantor shall remain bound by this Note Guarantee in the event that the Issuer or any other Guarantor hereto reaches an arrangement with its creditors in the course of insolvency proceedings or similar. In particular, no Spanish Guarantor may benefit from potential privileges with regard to the Note Guarantee (such as partial release of debt, stays or others) that have been provided for in the arrangement the Issuer or any other Guarantor hereto may have reached with their creditors (unless all of the Holders of the Notes have expressly voted in favour of the approval of the arrangement) and the Note Guarantee shall therefore continue on the same terms and in full force and effect with respect to the Guaranteed Obligations. In the event of insolvency of the Spanish Guarantor, the Holders of the Notes and/or the Trustee shall also be entitled to request the inclusion on the list of creditors of the then outstanding unpaid amounts following the enforcement of the Note Guarantee.
For the avoidance of doubt, the Notes Obligations of any Spanish Guarantor shall not extend to any obligations that would constitute unlawful financial assistance within the meaning of Section 143.2 or Section 150 of the Spanish Companies Law.
ARTICLE 11
COLLATERAL AND SECURITY
Section 11.01 Collateral.
(a)The due and punctual payment of the principal of, premium, if any, and interest on the Notes and the Note Guarantees when and as the same shall be due and payable, whether on an Interest Payment Date, at maturity, by acceleration, repurchase, redemption or otherwise, interest on the overdue principal of and interest (to the extent permitted by law), if any, on the Notes and the Note Guarantees and performance of all other obligations under this Indenture, including, without limitation, the obligations of the Issuer set forth in Section 7.07, and the Notes, the Note Guarantees, the Intercreditor Agreements and the Collateral Documents, shall be secured, to the maximum extent permitted by law, as provided in the Collateral Documents, which define the terms of the Liens that secure the Notes and the Note Guarantees, subject to the terms of the Intercreditor Agreements. The Trustee, for the benefit of the Holders, hereby appoints GLAS Americas LLC as the initial Notes Collateral Agent and the Notes Collateral Agent is hereby authorized and directed to execute and deliver the Collateral Documents and the Intercreditor Agreements. The Issuer and the Guarantors hereby agree that the Notes Collateral Agent shall hold the Collateral in trust (or, as the case may be, as direct representative) for the benefit of all of the Holders, the Trustee and the Notes Collateral Agent, in each case pursuant to the terms of the Collateral Documents and the Intercreditor Agreements.
(b)Each Holder, by its acceptance of any Notes and the Note Guarantees, consents and agrees to the terms of the Collateral Documents and the Intercreditor Agreements (including, without limitation, the provisions providing for foreclosure and release of Collateral and the automatic amendments, supplements, consents, waivers and other modifications thereto without the consent of the Holders) as the same may be in effect or may be amended from time to time in accordance with their terms and this Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements on the Issue Date, and any Collateral Documents at any time after the Issue Date, if applicable, and to perform its obligations and exercise its rights thereunder in accordance therewith. In the event of conflict between an Intercreditor Agreement, any of the other Collateral Documents and this Indenture, the applicable Intercreditor Agreement shall control. The Company shall deliver to the Notes Collateral Agent copies of all documents required to be filed pursuant to the Collateral Documents, and will do or cause to be done all such acts and things as may be reasonably required by Section 11.04(a), to assure and confirm to the Notes Collateral Agent the security interest in the Collateral contemplated hereby, by the Collateral Documents or any part thereof, as from time to time constituted, so as to render the same available for the security and benefit of this Indenture and of the Notes secured hereby, according to the intent and purposes herein expressed.
(c)The Trustee and each Holder, by accepting the Notes and the Note Guarantees, acknowledge that, as more fully set forth in the Collateral Documents and the Intercreditor Agreements, the Collateral as now or hereafter constituted shall be held for the benefit of the Notes Collateral Agent, all the Holders and the Trustee, and that the Liens granted on the Collateral pursuant to the Collateral Documents are subject to and qualified and limited in all respects by the Collateral Documents and the Intercreditor Agreements and actions that may be taken thereunder.
(d)
(61)Prior to the discharge of the Superpriority Credit Facility Obligations, to the extent that the Superpriority Credit Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without
limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the Superpriority Credit Facility Collateral Agent in respect of any such matters under the Superpriority Credit Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(62)Prior to the discharge of the 2025 Credit Facility Obligations, to the extent that the 2025 Credit Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the 2025 Credit Facility Collateral Agent in respect of any such matters under the 2025 Credit Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(63)Prior to the discharge of the ABL Obligations, to the extent that the ABL Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the ABL Priority Collateral or makes any determination in respect of any matters relating to the ABL Priority Collateral, including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date and including with respect to any time periods described in the immediately preceding paragraph), the Notes Collateral Agent shall be deemed to be satisfied with such deliveries, extensions or waivers, and/or documents and the judgment of the ABL Facility Collateral Agent in respect of any such matters under the ABL Facility will be deemed to be the judgment of the Notes Collateral Agent in respect of such matters under this Indenture and the Collateral Documents.
(e)Without limiting the powers of the Notes Collateral Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec, each of the Holders hereby irrevocably appoints and authorizes the Notes Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Notes Collateral Agent, to act as the hypothecary representative of the present and future Holders as contemplated under Article 2692 of the Civil Code of Quebec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec and applicable law. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to the Trustee and the Notes Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Holders. Any person who becomes a Holder in accordance
with the terms of this Indenture be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Holder, all actions taken by the Attorney in such capacity. The substitution of the Notes Collateral Agent pursuant to the provisions of ARTICLE 7 also constitute the substitution of the Attorney.
(f)By its acceptance of any Notes and the Note Guarantees, each Holder directs the Trustee to enter into the ABL Intercreditor Agreement in its capacity as Existing Euro Notes Trustee (as defined in the ABL Intercreditor Agreement) and on behalf of each Holder, and thereby to irrevocably appoint the European Collateral Agent (as defined in the ABL Intercreditor Agreement), on behalf of itself and each Holder, to serve as collateral agent in respect of the Foreign Collateral (as defined in the ABL Intercreditor Agreement (other than Collateral located in or otherwise governed by the laws of France or any province or territory of Canada)) pursuant to the terms of the ABL Intercreditor Agreement.
Section 11.02 Maintenance of Collateral.
The Issuer and the Note Guarantors shall (a) maintain the Collateral that is material to the conduct of their respective businesses in good working order, condition and repair, except for expiration of intellectual property at the end of its natural term; (b) pay all real estate and other taxes before the same become delinquent (except such as are contested in good faith and by appropriate negotiations or proceedings or as would not result in a material adverse effect); and (c) maintain in full force and effect all material permits and certain insurance coverages.
Section 11.03 Impairment of Collateral.
Subject to the rights of the holders of any senior Liens and Section 11.07, the Company shall not, and shall not permit any of the Subsidiaries to, take or knowingly or negligently omit to take, any action which action or omission would or could reasonably be expected to have the result of materially impairing the security interest with respect to the Collateral for the benefit of the Trustee, the Notes Collateral Agent and the Holders, unless such action or failure to take action is otherwise permitted by this Indenture, the Intercreditor Agreements or the Collateral Documents.
Section 11.04 Further Assurances.
(a)On and after the Issue Date, and subject to the Intercreditor Agreements, the Issuer shall and shall cause each Guarantor (subject to, in the case of the Domestic Note Parties, the Domestic Collateral and Guarantee Requirements and in the case of the Foreign Note Parties, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles, as applicable) at their sole expense to execute, acknowledge, deliver and cause to be duly filed all such further instruments and documents and take all such actions which may be necessary, including those the Notes Collateral Agent may from time to time reasonably request (it being understood that the Notes Collateral Agent is under no obligation or duty to make such request), to create, better assure, preserve, protect, defend and perfect (or continue the perfection of) the validity and priority of the Liens and the security interests in the United States and the Specified Jurisdictions and the rights and remedies created or intended to be created under the Collateral Documents (including, without limitation, the notarization of the Spanish Collateral Documents, the delivery of notifications to counterparties and the registration in any applicable public registry) for the benefit of the Trustee, the Notes Collateral Agent and the Holders (subject to Permitted Liens); provided that for so long as there are outstanding any 2025 Credit Facility Obligations, no actions shall be required to be taken with respect to the perfection of the security interests in the Collateral to the extent such actions are not required to be taken with respect to the 2025 Credit Facility. Such security interests and Liens will be created under the Collateral Documents.
(b)On and after the Issue Date, with respect to any property (other than Excluded Property and Foreign Excluded Property) of the Issuer, the Company or any Guarantors as to which the Notes Collateral Agent, for the benefit of the Holders, does not have a perfected Lien, the Company shall and shall cause the applicable Guarantor to promptly (i) execute and deliver to the Notes Collateral Agent such amendments to the Collateral Documents or such other documents as the Notes Collateral Agent deems reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a perfected first priority security interest (subject to Liens permitted under Section 4.10) in such property, including the filing of Uniform Commercial Code and PPSA financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Notes Collateral Agent.
(c)On and after the Issue Date, with respect to any Subsidiary created or acquired by the Company or any Guarantor, within 45 days of such Person becoming a Subsidiary (or such later date as agreed by the Notes Collateral Agent), (i) the Company shall take all actions (if any) to cause such Subsidiary (other than an Excluded Subsidiary) to comply with the Collateral and Guarantee Requirements, (ii) the Company shall, or shall cause the applicable Guarantor to, execute and deliver to the Notes Collateral Agent such amendments to the Collateral Documents as the Notes Collateral Agent deems reasonably necessary or advisable to grant to the Notes Collateral Agent, for the benefit of the Holders, a perfected first priority security interest (subject to Liens permitted under Section 4.10) in the Capital Stock of such new Subsidiary that is owned by the Company or any Guarantor except to the extent such Capital Stock constitutes an Excluded Property or Foreign Excluded Property, and (iii) except to the extent constituting Excluded Property or Foreign Excluded Property, if such Capital Stock is certificated, deliver to the Notes Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Guarantor, as applicable.
(d)Notwithstanding anything to the contrary herein or in any other Note Document, if the Paderborn Property constitutes (or is required to constitute) collateral securing the Superpriority Credit Facility, the Issuer shall promptly notify the Trustee, the Notes Collateral Agent and Holders of the Notes thereof. In the case of any such notice to Holders, such notice shall seek the direction of Holders of Notes, to be given no later than 30 days after such notice is given, as to whether the Paderborn Property shall be included in the Collateral securing the Notes and it shall describe in reasonable detail the tax consequences to Holders and beneficial owners of the Notes of including the Paderborn Property in the Collateral. If the Required Noteholders determine to include the Paderborn Property in the Collateral securing the Notes, the Paderborn Property shall cease to be Foreign Excluded Property and constitute Collateral, and such real property shall be subject to Section 11.06 as if such real property had been acquired on the date of such notification.
Section 11.05 After-Acquired Property.
Subject to the applicable limitations and exceptions set forth in the Collateral Documents, the Agreed Security Principles and this Indenture (including with respect to Excluded Property), from and after the Issue Date, if the Issuer or any Guarantor acquires any After-Acquired Property or if any new Subsidiary becomes a Guarantor, the Issuer or such Guarantor shall promptly (but so long as the 2025 Credit Facility is outstanding in no circumstances sooner than required with respect to the 2025 Credit Facility) (i) grant a first-priority perfected security interest (subject to Permitted Liens and the terms of the Intercreditor Agreements) upon any such property, as security for the Notes and the Note Guarantees and (ii) execute and deliver such mortgages, deeds of trust, security instruments, financing statements and certificates as shall be necessary to vest in the Notes Collateral Agent a perfected security interest, subject only to Permitted Liens, in such After-Acquired Property or in the Collateral of such Guarantor and to
have such After-Acquired Property or such Collateral (but subject to the applicable limitations and exceptions set forth in the Collateral Documents, the Agreed Security Principles and this Indenture) added to the Collateral, and thereupon all provisions of this Indenture relating to the Collateral shall be deemed to relate to such After-Acquired Property or Collateral to the same extent and with the same force and effect; provided, however, that if granting such security interest in such After-Acquired Property or Collateral requires the consent of a third party, to the extent such actions are also taken with respect to the 2025 Credit Facility, the Issuer or such Guarantor will use commercially reasonable efforts to obtain such consent with respect to the security interest for the benefit of the Trustee and the Notes Collateral Agent on behalf of the Holders of the Notes; provided further, however, that if such third party does not consent to the granting of such security interest after the use of such commercially reasonable efforts, the Issuer or such Guarantor, as the case may be, will not be required to provide such security interest.
Section 11.06 Real Estate Mortgages and Filings.
(a)With respect to any Material Real Property owned by the Issuer or a Guarantor in the United States on the Issue Date or acquired by the Issuer or a Guarantor in the United States after the Issue Date that forms a part of the Collateral (individually and collectively, the “Premises”), within 90 days of the Issue Date or the date of acquisition (or such longer period as may be permitted under the Superpriority Credit Facility), as applicable:
(64)The Issuer or such Guarantor shall deliver to the Notes Collateral Agent, as mortgagee or beneficiary, as applicable, for the ratable benefit of itself and the Holders, counterparts of each Mortgage with respect to each such Premises, in accordance with the requirements of this Indenture and/or the Collateral Documents, duly executed by the Issuer or such Guarantor, suitable for recording in all recording offices that the Notes Collateral Agent may reasonably deem necessary to create a valid and enforceable mortgage lien (and to perfect such lien) at the time of recordation thereof, with the priority required by this Indenture, the Collateral Documents and the Intercreditor Agreements;
(65)The Notes Collateral Agent shall have received a mortgagee’s title insurance policy insuring (or committing to insure) in favor of the Notes Collateral Agent, and its successors and/or assigns, in the form necessary, with respect to the property purported to be covered by the applicable Mortgage, to insure that the interest created by such Mortgage constitutes valid mortgage liens on the applicable Premises, with the priority required by this Indenture, the Collateral Documents and the Intercreditor Agreements, free and clear of all Liens, defects and encumbrances, other than Permitted Liens. Any such title policy shall be in amounts equal to the estimated Fair Market Value of the Premises covered thereby, and such policies shall also include, to the extent available, all such customary endorsements and reinsurance as are available in the applicable jurisdiction and as the Notes Collateral Agent may reasonably request which are available at commercially reasonable rates in the jurisdiction where the applicable Premises is located; and
(66)The Issuer or the Guarantors shall deliver to the Notes Collateral Agent with respect to such Premises, surveys of each Premises, local counsel opinions, along with such other documents, instruments, certificates and agreements, and any other documents necessary to comply with Section 11.06(a) and (b) and as the Trustee or Notes Collateral Agent may reasonably request.
(b)With respect to any fee interest in any Premises owned by the Issuer or a Guarantor outside the United States on the Issue Date or acquired by the Issuer or a Guarantor outside the United States after the Issue Date that forms a part of the Collateral, the Issuer or such Guarantor will be required to take such steps to grant a perfected security interest therein and provide such deliverables as
are customary under applicable local law, in each case, to the extent and within the time periods set forth in the Agreed Security Principles or the Canadian Collateral and Guarantee Requirement, as applicable.
Section 11.07 Release of Liens on the Collateral.
(a)Collateral may be released from the Lien and security interest created by the Collateral Documents at any time and from time to time in accordance with the provisions of the Collateral Documents, the Intercreditor Agreements and this Indenture. Notwithstanding anything to the contrary in the Collateral Documents, the Intercreditor Agreements and this Indenture, the Issuer, the Company and the Guarantors will be entitled to the release of property and other assets constituting Collateral from the Liens securing the Notes and the Obligations under this Indenture under any one or more of the following circumstances:
(67)to enable the Issuer, the Company and/or one or more Guarantors to consummate the sale, transfer or other disposition (including by the termination of capital leases or the repossession of the leased property in a capital lease by the lessor) of such property or assets (to a Person that is not the Company or a Subsidiary of the Company) to the extent permitted by Section 4.16;
(68)in the case of a Guarantor that is released from its Guarantee with respect to the Notes pursuant to the terms of this Indenture, the release of the property and assets of such Guarantor;
(69)with respect to any Collateral that is or becomes an “Excluded Property,” upon it becoming an Excluded Property;
(70)in connection with any enforcement action taken by an Authorized Representative in accordance with the terms of the Intercreditor Agreements or the Collateral Documents; or
(71)as described under Article 9 hereof.
(b)The Liens on the Collateral will be released with respect to the Notes and the Note Guarantees, as applicable:
(72)in whole, upon payment in full of the principal of, accrued and unpaid interest, including premium, if any, on the Notes;
(73)in whole, upon satisfaction and discharge of this Indenture in accordance with ARTICLE 12;
(74)in whole, upon a Legal Defeasance or Covenant Defeasance as set forth under ARTICLE 8;
(75)in whole or in part, in accordance with the applicable provisions of the Collateral Documents, the Intercreditor Agreements and this Indenture; and
(76)automatically upon release of the Guarantees provided by the German- domiciled Guarantors and the Liens on assets of such entities pursuant to Section 11.07(c);
provided that, in the case of any release in whole pursuant to clauses (1), (2), (3) and (4) of this Section 11.07(b), all amounts owing to the Trustee and the Notes Collateral Agent
under this Indenture, the Notes, the Note Guarantee, the Collateral Documents and the Intercreditor Agreements have been paid.
(c)Solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities, in each case with respect to the Superpriority Credit Facility, the 2025 Credit Facility, the 2025 Notes and the New 2L Notes, may be released with the consent of (i) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Credit Facility, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the 2025 Credit Facility, and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes, solely in the event that such lenders and holders determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors. Upon and simultaneously with such release, the priority of Liens on the pledged equity of Diebold Germany shall automatically be changed such that the Lien in favor of the Superpriority Credit Facility is senior to the Lien in favor of the 2025 Credit Facility, the 2025 Notes and (for the avoidance of doubt) the New 2L Notes (it being understood that the Lien on the pledged equity of Diebold Germany securing the New 2L Notes shall at all times be junior to the Liens securing the Superpriority Credit Facility, the 2025 Credit Facility and the 2025 Notes); provided that, no such release will be effective until the applicable proceeding is actually commenced.
(d)The Issuer and each Guarantor will furnish to the Trustee and the Notes Collateral Agent, prior to each proposed release of Collateral pursuant to this Indenture (other than pursuant to Section 11.07(a) or Section 11.07(b)(4) or (5)) or pursuant to the Collateral Documents: (77)an Officer’s Certificate requesting any such release, filing or other action without recourse, warranty or representation of any kind (express or implied);
(78)an Officer’s Certificate and Opinion of Counsel to the effect that all conditions precedent provided for in this Indenture, the Collateral Documents and the Intercreditor Agreements, as applicable to such release have been complied with and that it is permitted for the Trustee and/or the Notes Collateral Agent to execute and deliver the documents requested by the Issuer in connection with such release and any necessary or proper instruments of termination, satisfaction or release prepared by the Issuer; and
(79)a form of such release (which release shall be in form reasonably satisfactory to the Trustee and shall provide that the requested release is without recourse or warranty to the Trustee).
(e)Upon compliance by the Issuer and each Guarantor, as the case may be, with the conditions precedent for any release of Collateral as set forth above, and if required by this Indenture upon delivery by the Issuer or the Guarantors to the Trustee an Opinion of Counsel to the effect that such conditions precedent have been complied with, the Trustee or the Notes Collateral Agent shall, at the Issuer’s expense, promptly cause to be released and reconveyed to the Issuer or the relevant Guarantors, as the case may be, the released Collateral, and take, at the Issuer’s expense, all other actions reasonably requested by the Issuer in connection therewith. Neither the Trustee nor the Notes Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s Certificate, and notwithstanding any term hereof or in any Collateral Document or in the Intercreditor Agreements to the contrary, the Trustee and the Notes Collateral Agent shall not be under any obligation to release any such Lien and security interest, or execute and deliver any such instrument of release, satisfaction or
termination, unless and until it receives such Officer’s Certificate, upon which it shall be entitled to conclusively rely.
Section 11.08 Information Regarding Collateral.
(a)The Issuer will furnish to the Notes Collateral Agent, with respect to the Issuer or any Guarantor, promptly (and in any event within 10 days of such change or such longer period as then permitted under the facility (for the purposes of this paragraph, the “controlling facility”) governing that series of Indebtedness for which the Controlling Collateral Agent (as defined under the applicable Intercreditor Agreement)for any applicable Intercreditor Agreement acts as “collateral agent”) written notice of any change in such Person’s (1) corporate or organization name, (2) jurisdiction of organization or formation or the location of its registered office, principal place of business or chief executive office,
(3) identity or corporate structure or (4) organizational identification number. The Issuer and the Guarantors will agree not to effect or permit any change referred to in the preceding sentence unless all filings have been made, or will have been made within 10 days following such change (or such longer period as then permitted under the controlling facility) or within any applicable statutory period, under the Uniform Commercial Code, the PPSA and any other applicable laws that are required in the Collateral Documents in order for the Collateral to be made subject to the Lien of the Notes Collateral Agent under the Collateral Documents in the manner and to the extent required by this Indenture or any of the Collateral Documents and shall take all necessary action so that such Lien is perfected with the same priority as immediately prior to such change to the extent required by the Collateral Documents. The Issuer also agrees promptly to notify the Notes Collateral Agent in writing if any material portion of the Collateral is damaged, destroyed or condemned in a manner which would reasonably be expected to have a material adverse effect.
Section 11.09 Collateral Documents and Intercreditor Agreements.
(a)Each Holder, by its acceptance of a Note, (a) agrees that it will be bound by the provisions of any Intercreditor Agreement as if it were a signatory thereto and will take no actions contrary to the provisions of any Intercreditor Agreement and (b) authorizes and instructs the Trustee and the Notes Collateral Agent to enter into (i) the ABL Intercreditor Agreement on the Issue Date, (ii) the First Lien Pari Passu Intercreditor Agreement on the Issue Date, (iii) the Junior Lien Pari Passu Intercreditor Agreement on the Issue Date, (iv) the Non-Released Multi Lien Intercreditor Agreement on the Issue Date and (v) the Multi Lien Intercreditor Agreement on the Issue Date in accordance with this Indenture and the other Note Documents, in each case as Trustee and as Notes Collateral Agent, as the case may be, and on behalf of such Holder, including without limitation, making the representations of the Holders contained therein. The foregoing provisions as they relate to the Intercreditor Agreements are intended as an inducement to the lenders under the Superpriority Credit Facility, the 2025 Credit Facility and the ABL Facility to extend credit and such lenders are intended third party beneficiaries of such provisions and the provisions of the applicable Intercreditor Agreements.
(b)Notwithstanding anything herein to the contrary, (i) the Liens and security interests granted to the Notes Collateral Agent on the Shared Collateral (as defined in the Multi Lien Intercreditor Agreement) are expressly subject and subordinate to the Liens and security interests granted in favor of the First Priority Secured Parties (as defined in the Multi Lien Intercreditor Agreement), and
(ii) the exercise of any right or remedy by the Notes Collateral Agent or any other party hereunder in respect of such Shared Collateral is subject to the limitations and provisions of the Multi Lien Intercreditor Agreement. In the event of any conflict between the terms of the Multi Lien Intercreditor Agreement and the terms of this Indenture, the terms of the Multi Lien Intercreditor Agreement shall govern.
Section 11.10 Suits to Protect the Collateral.
Subject to the provisions of Article 7, the Collateral Documents and the Intercreditor Agreements, the Trustee may direct the Notes Collateral Agent to take all actions it determines in order to:
(a)
enforce any of the terms of the Collateral Documents; and hereunder.
(b)collect and receive any and all amounts payable in respect of the Obligations
Subject to the provisions of the Collateral Documents and the Intercreditor Agreements,
the Trustee and the Notes Collateral Agent shall have the power to institute and to maintain such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to prevent any impairment of the Collateral by an acts which may be unlawful or in violation of any of the Collateral Documents or this Indenture, and such suits and proceedings as the Trustee or the Notes Collateral Agent may determine to preserve or protect its interests and the interests of the Holders in the Collateral. Nothing in this Section
11.10 shall be considered to impose any such duty or obligation to act on the part of the Trustee or the Notes Collateral Agent.
Section 11.11 Authorization of Receipt of Funds by the Trustee Under the Collateral Documents.
Subject to the provisions of the Intercreditor Agreements, the Trustee is authorized to receive any funds for the benefit of the Holders distributed under the Collateral Documents, and to make further distributions of such funds to the Holders according to the provisions of this Indenture.
Section 11.12 Purchaser Protected.
In no event shall any purchaser in good faith of any property purported to be released hereunder be bound to ascertain the authority of the Notes Collateral Agent or the Trustee to execute the applicable release or to inquire as to the satisfaction of any conditions required by the provisions hereof for the exercise of such authority or to see to the application of any consideration given by such purchaser or other transferee; nor shall any purchaser or other transferee of any property or rights permitted by this Article 11 to be sold be under any obligation to ascertain or inquire into the authority of the Issuer, the Company or the applicable Guarantor to make any such sale or other transfer.
Section 11.13 Powers Exercisable by Receiver or Trustee.
In case the Collateral shall be in the possession of a receiver or trustee, lawfully appointed, the powers conferred in this Article 11 upon the Issuer, the Company or a Guarantor with respect to the release, sale or other disposition of such property may be exercised by such receiver or trustee, and an instrument signed by such receiver or trustee shall be deemed the equivalent of any similar instrument of the Issuer, the Company or a Guarantor or of any Officer or Officers thereof required by the provisions of this Article 11; and if the Trustee or the Notes Collateral Agent shall be in the possession of the Collateral under any provision of this Indenture, then such powers may be exercised by the Trustee or the Notes Collateral Agent.
Section 11.14 Spanish Particularities in Relation to any Spanish Collateral Documents.
(a)By their acceptance of the Notes, each of the Holders hereby:
(80)Appoints each of the Notes Collateral Agent and/or the Trustee, as applicable, to be its mandatario (empowered representative) for the purpose of executing any
Spanish Collateral Document in the name and on behalf of the Holders, with the power to determine and agree any term and condition of such Spanish Collateral Document, execute any other agreement or instrument, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, enforcement and release of the security created there under in the name and on behalf of the Holders; and
(81)undertakes to ratify and approve any such action taken in the name and on behalf of the Holders by the Notes Collateral Agent and/or the Trustee acting in such capacity.
(b)For the above purposes, each of the Holders shall, if so requested by the Notes Collateral Agent and/or the Trustee, as applicable:
(82)grant a power of attorney in favor of the Notes Collateral Agent and/or the Trustee entitling each of them to grant, perfect, register, novate, enforce and/or cancel the relevant Spanish Collateral Document; and
(83)notarize and apostille this power of attorney before a notary public in their jurisdiction of incorporation (if the process of notarization and apostille exists within that relevant jurisdiction, if not, to carry out the proper legalization process in order for such power of attorney to be valid in Spain).
(c)Each of the Holders hereby authorizes the Notes Collateral Agent and/or the Trustee, as applicable (whether or not by or through employees or agents):
(84)to exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Notes Collateral Agent and/or the Trustee by the Spanish Collateral Documents together with such powers and discretions as are reasonably incidental thereto; and
(85)to take such action on its behalf as may from time to time be authorized under or in accordance with the Spanish Collateral Documents.
(d)To the extent any Holder is unable to grant such powers referred to above or in any other provision of this Indenture to the Notes Collateral Agent and/or the Trustee, each such Holder irrevocably undertakes before the Notes Collateral Agent, the Trustee and the other Holders to appear, carry out any action and execute any document needed or convenient with the Notes Collateral Agent and/or the Trustee to enable the Notes Collateral Agent and/or the Trustee to exercise any right, power, authority or discretion vested in it as Notes Collateral Agent and/or the Trustee, as applicable, pursuant to this Indenture and to execute any document or instrument including any Spanish Public Document.
ARTICLE 12 SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and Discharge.
(a)This Indenture will be discharged, and will cease to be of further effect as to all Notes and Note Guarantees issued hereunder, when either:
(86)all Notes that have been authenticated and delivered (except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been
deposited in trust or segregated and held in trust by the Issuer) have been delivered to the Trustee for cancellation; or
(87)(A) all Notes not theretofore delivered to the Trustee for cancellation have become due and payable by reason of the giving of a notice of redemption or otherwise, will become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Issuer, and the Issuer or any Guarantor has irrevocably deposited or caused to be deposited with the Paying Agent, as trust funds in trust solely for the benefit of the Holders, cash in Euros, Government Securities, or a combination thereof, in such amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation for principal, premium, if any, and accrued interest to the date of maturity or redemption, as the case may be;
(B)no Default or Event of Default has occurred and is continuing on the date of such deposit or will occur as a result of such deposit (other than a Default or an Event of Default resulting from the borrowing of funds to be applied to make such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens in connection therewith);
(C)the Issuer or any Guarantor has paid or caused to be paid all sums payable by the Issuer under this Indenture; and
(D)the Issuer has delivered irrevocable instructions to the Trustee and the Paying Agent to apply the deposited money toward the payment of the Notes at maturity or the redemption date, as the case may be.
(b)In addition, the Issuer shall deliver to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent to satisfaction and discharge have been satisfied. Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to Section 12.01(a)(2)(A), the provisions of Section 12.02 and Section 8.06 shall survive.
Section 12.02 Application of Trust Money.
(a)Subject to the provisions of the Intercreditor Agreements and Section 8.06, all money deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, if any, and interest for whose payment such money has been deposited with the Trustee, but such money need not be segregated from other funds except to the extent required by law.
(b)If the Trustee or Paying Agent is unable to apply any money or Government Securities in accordance with Section 12.01 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and any Guarantor’s obligations under this Indenture, the Notes and the Note Guarantees shall be revived and reinstated as though no deposit had occurred pursuant to Section 12.01; provided that if the Issuer has made any payment of principal, premium, if any, or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders
of such Notes to receive such payment from the money or Government Securities held by the Trustee or Paying Agent, as the case may be.
ARTICLE 13
MISCELLANEOUS
Section 13.01 [Reserved].
Section 13.02 Notices.
(a)Any notice or communication to the Issuer, any Guarantor, the Trustee, the Notes Collateral Agent, the Common Depositary, the Principal Paying Agent or the Principal Registrar is duly given if in writing and (1) delivered in person, (2) mailed by first-class mail (certified or registered, return receipt requested), postage prepaid, or overnight air courier guaranteeing next day delivery or (3) sent by electronic transmission, to its address set forth below:
if to the Issuer or any Guarantor:
c/o Diebold Nixdorf Dutch Holding B.V. 5995 Mayfair Road
North Canton, Ohio 44720-01507 Fax No.: (330) 490-6823
Email: james.barna@dieboldnixdorf.com Attention: James Barna
with a copy to:
Sullivan & Cromwell LLP 125 Broad Street
New York, NY 10004 Fax No: (212) 291-9219
Email: blauta@sullcrom.com Attention: Ari Blaut
if to the Trustee:
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Email: david.schlabach@usbank.com Attention: David A. Schlabach
if to the Notes Collateral Agent:
GLAS Americas LLC
3 Second Street, Suite 206 Jersey City, NJ 07311
Email: TMGUS@glas.agency; clientservices.americas@glas.agency Telephone: +1 (201) 839-2181
Attention: Transaction Management
if to the Common Depositary, Paying Agent and Registrar:
Elavon Financial Services DAC Building 8, Cherrywood Business Park Loughlinstown, Dublin 18
D18 W319, Ireland
Email: mbs.relationship.management@usbank.com
Attention: Structured Finance Relationship Management – Diebold
The Issuer, any Guarantor, the Trustee, the Notes Collateral Agent, the Common Depositary, the Principal Paying Agent or the Principal Registrar, by like notice, may designate additional or different addresses for subsequent notices or communications.
(b)All notices and communications (other than those sent to Holders) shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; on the first date of which publication is made, if by publication; five calendar days after being deposited in the mail, postage prepaid, if mailed by first-class mail; the next Business Day after timely delivery to the courier, if mailed by overnight air courier guaranteeing next day delivery; when receipt acknowledged, if sent by electronic transmission; provided that any notice or communication delivered to the Trustee or the Notes Collateral Agent shall be deemed effective upon actual receipt thereof.
(c)Any notice or communication to a Holder shall be mailed by first-class mail (certified or registered, return receipt requested) or by overnight air courier guaranteeing next day delivery to its address shown on the Note Register or by such other delivery system as the Trustee agrees to accept; provided that, anything herein to the contrary notwithstanding, for so long as any Notes are represented by Global Notes, all notices to Holders of the Global Notes will be mailed or otherwise delivered to Euroclear and Clearstream and may be given in any manner as may be required or permitted by Euroclear or Clearstream, as the case may be. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders.
(d)Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee and the Notes Collateral Agent, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
(e)Where this Indenture provides for notice of any event to a Holder of a Global Note, such notice shall be sufficiently given if given to Euroclear and Clearstream for such Note (or its designee), according to the Applicable Procedures, if any, prescribed for the giving of such notice. In addition, for so long as any of the Notes on the Official List of the Exchange and the rules of the Exchange shall so require, notices with respect to the Notes will be notified to the Exchange.
(f)Each of the Trustee, the Notes Collateral Agent, the Principal Paying Agent and the Principal Registrar agree to accept and act upon notice, instructions or directions pursuant to this Indenture sent by electronic transmission; provided, however, that (1) the party providing such written notice, instructions or directions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the Trustee, the Notes Collateral Agent, the Principal Paying Agent and the Principal Registrar in a timely manner, and (2) such originally executed notice, instructions or directions shall be signed by an authorized representative of the party providing such notice, instructions or directions. None of the Trustee, the Notes Collateral Agent, the Principal Paying Agent or the Principal Registrar shall be liable for any losses, costs or expenses arising directly or
indirectly from its reasonable reliance upon and compliance with such notice, instructions or directions notwithstanding such notice, instructions or directions conflict or are inconsistent with a subsequent notice, instructions or directions.
(g)If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
(h)If the Issuer mails a notice or communication to Holders, it shall mail a copy to the Trustee, the Notes Collateral Agent and each Agent at the same time.
Section 13.03 [Reserved].
Section 13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer or any Guarantor to the Trustee or the Notes Collateral Agent to take any action under this Indenture, the Issuer or such Guarantor, as the case may be, shall furnish to the Trustee or the Notes Collateral Agent:
(a)an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as the case may be (which shall include the statements set forth in Section 13.05), stating that, in the opinion of the signer(s), all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b)an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee or the Notes Collateral Agent, as the case may be (which shall include the statements set forth in Section 13.05), stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with; provided that subject to Section 5.01(c), no Opinion of Counsel shall be required in connection with the addition of a Guarantor under this Indenture upon execution and delivery by such Guarantor, the Trustee and the Notes Collateral Agent of a supplemental indenture to this Indenture, the form of which is attached as Exhibit C.
Section 13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 4.07) shall include: (a)a statement that the Person making such certificate or opinion has read such covenant or condition;
(b)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c)a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with (and, in the case of an Opinion of Counsel, may be limited to reliance on an Officer’s Certificate as to matters of fact); and
(d)a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
Section 13.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
Section 13.07 No Personal Liability of Directors, Officers, Employees, Members, Partners and Shareholders.
No past, present or future director, officer, employee, incorporator, member, partner or shareholder of the Issuer or any Guarantor, as such, shall have any liability for any obligations of the Issuer or any Guarantor (other than the Issuer in respect of the Notes and each Guarantor in respect of its Note Guarantee) under the Notes, the Note Guarantees or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes.
Section 13.08 Governing Law.
THIS INDENTURE, THE NOTES AND ANY NOTE GUARANTEE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 13.09 Consent to Jurisdiction and Service of Process; Waiver of Jury Trial.
EACH PARTY HEREBY IRREVOCABLY SUBMITS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 13.10 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, epidemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 13.11 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret any other indenture, loan or debt agreement of the Issuer, the Company or its Subsidiaries or of any other Person. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.12 Successors.
All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee and the Notes Collateral Agent in this Indenture shall bind its successors. All agreements of each Guarantor in this Indenture shall bind its successors, except as otherwise provided in Section 10.06.
Section 13.13 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 13.14 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Indenture or any document to be signed in connection with this Indenture shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.
Section 13.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
Section 13.16 PDF Delivery of Signature Pages.
The exchange of copies of this Indenture and of signature pages by portable document format (“PDF”) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 13.17 U.S.A. PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.
Section 13.18 Payments Due on Non-Business Days.
In any case where any Interest Payment Date, redemption date or repurchase date or the Stated Maturity of the Notes shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Notes) payment of principal, premium, if any, or interest on the Notes need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest Payment Date, redemption date or repurchase date, or at the Stated Maturity of the Notes, provided that no interest will accrue for the period from and after such Interest Payment Date, redemption date, repurchase date or Stated Maturity, as the case may be.
Section 13.19 Spanish Provisions Relating to Executive Proceedings.
(a)Spanish Public Documents
At the reasonable request of the Trustee or the Notes Collateral Agent, this Indenture, the Notes, each Spanish Collateral Document, and any other document relating to any of the above (as well as any supplemental indentures, amendments hereto or thereto and any accession deeds or joinder agreements) shall be formalized as a Spanish Public Document. At the reasonable request of the Trustee or the Notes Collateral Agent, each Spanish Guarantor also undertakes to grant any public or private document required for the purposes of or in relation to such Spanish Public Document. Any costs and expenses relating to such formalization shall be paid and satisfied by the relevant Spanish Guarantor in accordance with this Indenture. The costs of issuance of the first copies (with and without enforcement title) of such Spanish Public Document shall be borne by the relevant Spanish Guarantors and the cost regarding the issuance of additional copies will be borne by the Party requesting such additional copies. Each Spanish Guarantors undertakes that the Spanish Public Document shall state any conditions that any of the Trustee or the Notes Collateral Agent reasonably considers necessary or convenient in respect of the enforceability of this Indenture, the Notes, or the Spanish Collateral Documents referred to in article 517 et seq of the Spanish Civil Procedural Law.
(b)Enforcement proceedings
(88)For the purpose of art. 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that: (A) the amount due and payable under this Indenture that may be claimed in any executive proceedings will be contained in a certificate setting out the relevant calculations and determinations provided by the Trustee, the Notes Collateral Agent and/or the Holders and will be based on the accounts maintained by such the Trustee and/or the Notes Collateral Agent (as applicable) in connection with this Indenture (or any Supplemental Indenture or amendment thereto); (B) the Trustee, the Notes Collateral Agent and/or the Holders may (at the cost of the relevant Spanish Guarantor) have the certificate notarized evidencing that the calculations and determinations have been effected; and (C) the Trustee, the Notes Collateral Agent and/or the Holders may claim the total amount of the principal and interest due if there is a default in the repayment of any instalment of principal or interest.
(89)The Trustee or the Notes Collateral Agent may start, where applicable, executive proceedings (procedimiento ejecutivo) in Spain, in connection with or relating to this Indenture (or any Supplemental Indenture or amendment thereto) or the relevant Supplemental Indenture or amendment thereto, by providing to the relevant court the documents specified in article 573 of the Spanish Civil Procedural Law, namely: (A) an original notarial copy of this Indenture or the relevant Supplemental Indenture or amendment thereto; (B) a notarial document (acta notarial) incorporating the certificate of the Trustee or the Notes Collateral Agent referred to in paragraph (i) above for the purposes of Article 572 of the Spanish Civil Procedural Law; and
(B)evidence that the relevant Spanish Guarantor has been notified of the amount which is due and payable resulting from the certificate (e.g., by means of a notarial document (acta notarial)).
(90)The Spanish Guarantors hereby expressly authorize the Notes Collateral Agent and the Trustee (and each Holder, as appropriate) to request and obtain certificates and documents issued by the notary who has formalized this Indenture (or any Supplemental Indenture or amendment thereto) in order to evidence its compliance with the entries of his registry-book and the relevant entry date for the purpose of numbers 4º or 5º (as applicable) of Article 517 of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the Spanish Guarantor in the manner provided under this Indenture.
(91)For the purposes of article 540.2 of the Spanish Civil Procedural Law, the Spanish Guarantors acknowledge and accept that, provided that the relevant assignment, transfer or change of Holders has been made in accordance with the terms of this Indenture, any assignment, transfer or change of Holders shall be duly and sufficiently evidenced to any Spanish court by means of a certificate issued by the Notes Collateral Agent or the Trustee confirming who the Holders are in each moment, and therefore, those who are certified as Holders by the Notes Collateral Agent or the Trustee shall be able to initiate enforcement in Spain through procedimiento ejecutivo without further evidence being required.
(92)The default interest agreed under this Indenture shall also be the post- judgment interest rate for purposes of the provisions of article 576.1 of the Spanish Civil Procedural Law.
(93)Notwithstanding the provisions of Section 13.08 (Governing Law) above, none of the Holders will be prevented from initiating enforcement proceedings before the Spanish courts against the Spanish Guarantors, which is hereby expressly acknowledged and accepted by the Spanish Guarantors.
Section 13.20 Parallel Debt; Parallel Debt Owed to the Notes Collateral Agent.
This Section 13.20 is included in this Indenture solely for the purpose of ensuring the validity and effect of certain security rights governed by the laws of the Netherlands, Poland and Germany granted or to be granted pursuant to the applicable Collateral Documents and, for the avoidance of doubt, shall not limit the rights and remedies provided to the Trustee or the Notes Collateral Agent by the other provisions hereof and the provisions of the other Note Documents.
(af)Each of the Note Parties hereby irrevocably and unconditionally undertakes to pay to the Notes Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties amounts equal to any amounts owing from time to time by that Note Party to any Secured Party under any Note Document as and when those amounts are due for payment under the relevant Note Document (each such payment undertaking of a Note Party in relation to any individual Secured Party, a “Parallel Debt Undertaking”, and all Parallel Debt Undertakings of each Note Party taken together, its “Parallel Debt”).
(ag)Each of the Note Parties and the Notes Collateral Agent acknowledge that the obligations of each Note Party under any Parallel Debt Undertaking are several and are separate and independent from, and shall not in any way limit or affect, the obligations of that Note Party to that relevant Secured Party under any Note Document that corresponds to the relevant Parallel Debt Undertaking (its “Corresponding Debt”) nor shall the amounts for which each Note Party is liable under any Parallel Debt Undertaking be limited or affected in any way by its Corresponding Debt provided that:
(1)the Notes Collateral Agent shall not demand payment with regard to the Parallel Debt Undertaking of a Note Party to the extent that the relevant Holder’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
(2)a Secured Party shall not demand payment with regard to the Corresponding Debt of a Note Party to the extent that such Note Party’s Parallel Debt Undertaking has been irrevocably paid or (in the case of guarantee obligations) discharged.
(3)each Parallel Debt Undertaking shall cover, in an anticipatory manner as to its scope, any future changes in the relevant Corresponding Debt, in particular any such changes resulting from any future increase of any loan or note facility, any future extension of the agreed maturity thereof or any future change of the interest rate charged thereunder;
(4)each Parallel Debt Undertaking shall be due and payable at any time from the date of this Indenture in an amount which equals the amount and currency or currencies of the relevant Corresponding Debt that is due and payable at the same time as the relevant Corresponding Debt; and
(5)each Parallel Debt Undertaking shall remain effective notwithstanding any transfer or assumption of its Corresponding Debt in whole or in part to or by any third party, irrespective of whether any such transfer or assumption is effected by way of assignment or assignment and transfer by way of assumption of contract or otherwise.
(ah)The Notes Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral under the Collateral Documents granted under the Note Documents to the Notes Collateral Agent to secure the Parallel Debt Undertakings is granted to the Notes Collateral Agent in its capacity as creditor of each Parallel Debt Undertaking and shall not be held on trust.
(ai)All monies received or recovered by the Notes Collateral Agent pursuant to this Section 13.20, and all amounts received or recovered by the Notes Collateral Agent from or by the enforcement of any collateral under the Collateral Documents granted to secure any Parallel Debt Undertaking, shall be applied in accordance with this Indenture.
(aj)Without limiting or affecting the Notes Collateral Agent’s rights against the Note Parties (whether under this Section 13.20 or under any other provision of the Note Documents), each Holder acknowledges that:
(6)nothing in this Section 13.20 shall impose any obligation on the Notes Collateral Agent to advance any sum to any Holder or otherwise under any Note Document, except in its capacity as lender;
(7)for the purpose of any vote taken under any Note Document, the Notes Collateral Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity as a lender; and
(8)for purposes of any Dutch Collateral Document, any resignation by the Notes Collateral Agent is not effective with respect to its rights under the Parallel Debt until all rights and obligations under the Parallel Debt have been assigned to and assumed by the successor agent appointed in accordance with this Indenture.
(ak)The Notes Collateral Agent will reasonably cooperate in transferring its rights and obligations under the Parallel Debt to a successor agent in accordance with this Indenture and will reasonably cooperate in transferring all rights and obligations under any Collateral Document to such successor agent. All parties to this Indenture hereby, in advance, irrevocably grant their cooperation (medewerking) to such transfers of rights and obligations by the Notes Collateral Agent to a successor agent in accordance with this Indenture.
(al)The provisions of this Section 13.20 may not apply for any Collateral Documents governed by French law.
Section 13.21 Judgment Currency.
(a)If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, under applicable law that the rate of exchange used shall be that at which in accordance with normal banking procedures the Trustee could purchase the first currency with such other currency in the city in which it normally conducts its foreign exchange operation for the first currency on the Business Day preceding the day on which final judgment is given.
(b)The obligation of the Note Parties in respect of any sum due from them to the Trustee or any Holder hereunder shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Indenture (the “Indenture Currency”), be discharged only to the extent that on the Business Day following receipt by the Trustee of any sum adjudged to be so due in the Indenture Currency the Trustee may in accordance with normal banking procedures purchase the Indenture Currency with the Judgment Currency; if the amount of Indenture Currency so purchased is less than the sum originally due to the Trustee in the Agreement Currency, the Note Parties agree notwithstanding any such judgment to indemnify the Trustee against such loss, and if the amount of the Indenture Currency so purchased exceeds the sum originally due to the Trustee, the Trustee agrees to remit to the Note Parties such excess.
[Signatures on following page]
| | |
ISSUER: |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
| BY: |
NAME: ELIZABETH RADIGAN |
TITLE: AUTHORIZED SIGNATORY |
COMPANY: |
DIEBOLD NIXDORF, INCORPORATED |
BY: |
NAME: JEFFREY RUTHERFORD |
TITLE: EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER |
GUARANTORS & GUARANTEEING SUBSIDIARIES:
| | |
DIEBOLD GLOBAL FINANCE CORPORATION |
BY: |
NAME: JAMES BARNA |
TITLE: VICE PRESIDENT AND TREASURER |
| | |
DIEBOLD HOLDING COMPANY, LLC |
BY: |
NAME: JAMES BARNA |
TITLE: VICE PRESIDENT AND TREASURER |
| | |
DIEBOLD SST HOLDING COMPANY, LLC |
BY: |
NAME: JAMES BARNA |
TITLE: VICE PRESIDENT AND TREASURER |
| | |
GRIFFIN TECHNOLOGY INCORPORATED |
BY: |
NAME: ELIZABETH RADIGAN |
TITLE: VICE PRESIDENT AND SECRETARY |
| | |
DIEBOLD SELF-SERVICE SYSTEMS |
BY: |
NAME: JAMES BARNA |
TITLE: VICE PRESIDENT AND TREASURER |
| | |
DIEBOLD NIXDORF TECHNOLOGY FINANCE, LLC |
BY: |
NAME: JAMES BARNA |
TITLE: VICE PRESIDENT AND TREASURER |
| | |
DIEBOLD NIXDORF CANADA, LIMITED |
BY: |
NAME: JONATHAN LEIKEN |
TITLE: VICE PRESIDENT AND SECRETARY |
| | |
DIEBOLD CANADA HOLDING COMPANY INC. |
BY: |
NAME: JONATHAN LEIKEN |
TITLE: VICE PRESIDENT AND SECRETARY |
| | |
DIEBOLD NIXDORF BV |
BY: |
NAME: HELENA MUELLER |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF GLOBAL HOLDING B.V. |
BY: |
NAME: ELIZABETH RADIGAN |
TITLE: AUTHORIZED SIGNATORY |
| | |
DIEBOLD NIXDORF B.V. |
BY: |
NAME: ELIZABETH RADIGAN |
TITLE: AUTHORIZED SIGNATORY |
| | |
DIEBOLD NIXDORF SOFTWARE PARTNER B.V. |
BY: |
NAME: MICHAEL ENGEL |
TITLE: MANAGING DIRECTOR |
| DIEBOLD NIXDORF SOFTWARE C.V. |
| | |
BY DIEBOLD NIXDORF SOFTWARE PARTNER B.V. AS GENERAL PARTNER |
BY: |
NAME: MICHAEL ENGEL |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF GLOBAL SOLUTIONS B.V. |
BY: |
NAME: HENDRIK SCHOUTEN |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF S.A.S. |
BY: |
NAME: OCTAVIO MARQUEZ |
TITLE: PRESIDENT |
| | |
DIEBOLD NIXDORF HOLDING GERMANY GMBH |
BY: |
NAME: OLAF HEYDEN |
TITLE: MANAGING DIRECTOR |
| | |
WINCOR NIXDORF INTERNATIONAL GMBH |
BY: |
NAME: OLAF HEYDEN |
TITLE: MANAGING DIRECTOR |
DIEBOLD NIXDORF SYSTEMS GMBH
| | |
BY: |
NAME: JÖRN FÖRSTER |
TITLE: MANAGING DIRECTOR |
DIEBOLD NIXDORF DEUTSCHLAND GMBH |
BY: |
NAME: ROLAND SORKE |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF LOGISTICS GMBH |
BY: |
NAME: CHRISTINA WIEBER |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF GLOBAL LOGISTICS GMBH |
BY: |
NAME: CHRISTINA WIEBER |
TITLE: MANAGING DIRECTOR |
| | |
WINCOR NIXDORF FACILITY GMBH |
BY: |
NAME: JÖRN FÖRSTER |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF REAL ESTATE GMBH & CO. KG |
BY DIEBOLD NIXDORF SECURITY GMBH AS GENERAL PARTNER |
BY: |
NAME: JÖRN FÖRSTER |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH |
BY: |
NAME: JÖRG KLEINSCHMIDT |
TITLE: MANAGING DIRECTOR |
| | |
IP MANAGEMENT GMBH |
BY: |
NAME: OLAF HEYDEN |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH |
BY: |
NAME: OLAF HEYDEN |
TITLE: MANAGING DIRECTOR |
| | |
DIEBOLD NIXDORF SECURITY GMBH |
BY: |
NAME: JÖRN FÖRSTER |
TITLE: MANAGING DIRECTOR |
DIEBOLD NIXDORF OPERATIONS GMBH |
BY: |
NAME: MICHAEL SCHÜTT |
TITLE: MANAGING DIRECTOR |
DIEBOLD NIXDORF FINANCE GERMANY GMBH
BY: NAME: JÖRN FÖRSTER
TITLE: MANAGING DIRECTOR
| | |
DIEBOLD NIXDORF S.R.L. |
BY: |
NAME: JONATHAN LEIKEN |
TITLE: AUTHORIZED SIGNATORY |
PLACE OF EXECUTION: |
| | |
DIEBOLD NIXDORF SP. Z O.O. |
BY: |
NAME: ADRIAN GAWRYŚ |
TITLE: MEMBER OF THE MANAGEMENT BOARD |
| | |
DIEBOLD NIXDORF BPO SP. Z O.O. |
BY: |
NAME: ADRIAN GAWRYŚ |
TITLE: MEMBER OF THE MANAGEMENT BOARD |
| | |
DIEBOLD NIXDORF S.L. |
BY: |
NAME: D. LUIS CARLOS RODRÍGUEZ ARGÜELLES |
TITLE: MANAGING DIRECTOR |
DIEBOLD NIXDORF AB
BY: NAME: RENE LAUXTERMANN
TITLE: DIRECTOR
| | |
DIEBOLD NIXDORF (UK) LIMITED |
BY: |
NAME: PAUL GEORGE YOUNG |
TITLE: DIRECTOR |
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, |
as Trustee |
By: |
Name: David A. Schlabach |
Title: Vice President |
| | |
GLAS AMERICAS LLC, |
as Notes Collateral Agent |
By: |
| Name: |
| Title: |
| | |
ELAVON FINANCIAL SERVICES DAC, |
as Paying Agent, Transfer Agent and Registrar |
By: |
Name: Michael Leong |
Title: Authorized Signatory |
APPENDIX A
PROVISIONS RELATING TO NOTES
Section 1.1 Definitions.
(a)Capitalized Terms.
Capitalized terms used but not defined in this Appendix A have the meanings given to them in this Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures of the Common Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in effect from time to time.
“Distribution Compliance Period,” means, with respect to any Note, the period of 40 consecutive days beginning on and including the later of (a) the day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, notice of which day shall be promptly given by the Issuer to the Trustee, and (b) the date of issuance with respect to such Note or any predecessor of such Note.
“IAI” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Regulation S” means Regulation S promulgated under the Securities Act. “Rule 144” means Rule 144 promulgated under the Securities Act.
“Rule 144A” means Rule 144A promulgated under the Securities Act. “United States” means the United States of America.
“Unrestricted Global Note” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.
“U.S. person” means a “U.S. person” as defined in Regulation S.
(b)Other Definitions.
| | | | | |
Term: | Defined in Section: |
“Agent Members” ........................................................................................ | 2.1(c) |
“Definitive Notes Legend”........................................................................... | 2.2(e) |
“ERISA Legend” ......................................................................................... | 2.2(e) |
“Global Note” ............................................................................................ | 2.1(b) |
“Global Notes Legend” ............................................................................... | 2.2(e) |
“IAI Global Note” ....................................................................................... | 2.1(b) |
“OID Legend” ............................................................................................ | 2.2(e) |
“Regulation S Global Note” ........................................................................ | 2.1(b) |
“Regulation S Notes”................................................................................... | 2.1(a) |
“Restricted Notes Legend” .......................................................................... | 2.3(e) |
“Rule 144A Global Note”............................................................................ | 2.1(b) |
“Rule 144A Notes” ..................................................................................... | 2.1(a) |
Section 2.1 Form and Dating
(a)(x) The Notes issued on July 25, 2020 were (i) offered and sold by the Issuer to the initial purchasers thereof and (ii) resold, initially only to (1) QIBs in reliance on Rule 144A (“Rule 144A Notes”) and (2) Persons other than U.S. persons in reliance on Regulation S (“Regulation S Notes”). Additional Notes may also be considered to be Rule 144A Notes or Regulation S Notes, as applicable.
(y) The Notes issued on December 29, 2022 shall be offered and sold by the Company in reliance on Section 4(a)(2) of the Securities Act and resold initially only to (1) QIBs in reliance on Rule 144A (and will constitute “144A Notes”), (2) IAIs that are not QIBs and that are purchasing for their own account or for the account of another IAI (and will constitute “IAI Notes”) and (3) Persons other than U.S. persons in reliance on Regulation S (and will constitute “Regulation S Notes”). Additional Notes may also be considered to be 144A Notes, IAI Notes or Regulation S Notes, as applicable.
(b)Global Notes. Rule 144A Notes shall be issued initially in the form of one or more permanent global Notes in definitive, fully registered form, numbered RA-1 upward (collectively, the “Rule 144A Global Note”) and Regulation S Notes shall be issued initially in the form of one or more global Notes, numbered RS-1 upward (collectively, the “Regulation S Global Note”), in each case without interest coupons and bearing the Global Notes Legend and Restricted Notes Legend, which shall be deposited with the Common Depositary, and registered in the name of the Common Depositary or a nominee of the Common Depositary, duly executed by the Issuer and authenticated by the Trustee as provided in the Indenture. One or more global Notes in definitive, fully registered form without interest coupons and bearing the Global Notes Legend and the Restricted Notes Legend, numbered RIAI-1 upward (collectively, the “IAI Global Note”) shall also be issued on the Issue Date, deposited with the Custodian, and registered in the name of the Common Depositary or a nominee of the Common Depositary, duly executed by the Issuer and authenticated by the Trustee as provided in this Indenture to accommodate transfers of beneficial interests in the Notes to IAIs. The Rule 144A Global Note, the IAI Global Note, the Regulation S Global Note and any Unrestricted Global Note are each referred to herein as a “Global Note” and are collectively referred to herein as “Global Notes.” Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests in the Global Note” attached thereto and each shall provide that it shall represent the aggregate principal amount of Notes from time to time endorsed thereon and that the aggregate principal amount of
outstanding Notes represented thereby may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect the amount of any increase or decrease in the aggregate principal amount of outstanding Notes represented thereby shall be made by the Trustee or the Common Depositary, at the direction of the Trustee, in accordance with instructions given by the Holder thereof as required by Section 2.06 of this Indenture and Section 2.2(c) of this Appendix A.
(c)Book-Entry Provisions. This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Common Depositary.
The Issuer shall execute and the Trustee shall, in accordance with this Section 2.1(c) and Section 2.02 of this Indenture and pursuant to an order of the Issuer signed by an Officer of the Issuer, authenticate and deliver initially one or more Global Notes that (i) shall be registered in the name of the Common Depositary for such Global Note or Global Notes or the nominee of such Common Depositary and (ii) shall be delivered by the Trustee to such Common Depositary or pursuant to such Common Depositary’s instructions.
Members of, or participants in, Euroclear or Clearstream (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held on their behalf by the Common Depositary or its nominee or under such Global Note, and the Common Depositary or its nominee, as applicable, may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Common Depositary or impair, as between Euroclear or Clearstream and their Agent Members, the operation of customary practices of Euroclear or Clearstream governing the exercise of the rights of a holder of a beneficial interest in any Global Note.
(d)Definitive Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer and Exchange.
(a)Transfer and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Registrar with a request:
(i)to register the transfer of such Definitive Notes; or
(ii)to exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that the Definitive Notes surrendered for transfer or exchange:
(9)shall be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing; and
(10)in the case of Transfer Restricted Notes, they are being transferred or exchanged pursuant to an effective registration statement under the Securities Act or pursuant to
Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes Legend, and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto.
(b)Restrictions on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note, duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Issuer and the Registrar, together with:
(i)a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto; and
(ii)written instructions directing the Registrar to make an adjustment on its books and records with respect to such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions to contain information regarding Euroclear or Clearstream, as applicable, account to be credited with such increase,
the Trustee shall cancel such Definitive Note and cause, or direct the Common Depositary to cause, in accordance with the standing instructions and procedures of Euroclear or Clearstream, as applicable, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable Global Note is not then outstanding, the Issuer shall issue and the Trustee shall authenticate, upon an Authentication Order, a new applicable Global Note in the appropriate principal amount.
(c)Transfer and Exchange of Global Notes.
(i)The transfer and exchange of Global Notes or beneficial interests therein shall be effected through Euroclear and Clearstream, in accordance with the Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures of Euroclear and Clearstream therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Registrar a written order given in accordance with Euroclear and Clearstream’s procedures containing information regarding the participant account in Euroclear and Clearstream to be credited with a beneficial interest in such Global Note, or another Global Note and such account shall be credited in accordance with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited by an amount equal to the beneficial interest in the Global Note being transferred.
(ii)If the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the Registrar shall reflect on its books and records the date and an increase in the principal amount of the Global Note to which such interest is being transferred in an amount equal to the principal amount of the interest to be so transferred, and the Registrar shall reflect on its books and records the date and a corresponding decrease in the principal amount of the Global Note from which such interest is being transferred.
(iii)Notwithstanding any other provisions of this Appendix A (other than the provisions set forth in Section 2.3 of this Appendix A), a Global Note may not be transferred except as a whole and
not in part if the transfer is by the Common Depositary to a nominee of the Common Depositary or by a nominee of the Common Depositary to the Common Depositary or another nominee of the Common Depositary or by the Common Depositary or any such nominee to a successor Common Depositary or a nominee of such successor Common Depositary.
(d)Restrictions on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global Notes.
(i)Transfers by an owner of a beneficial interest in a Rule 144A Global Note or an IAI Global Note to a transferee who takes delivery of such interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Note or a
Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed letter substantially in the form of Exhibit B to the Trustee.
(ii)During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note may only be sold, pledged or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation S Global Note and any applicable securities laws of any state of the U.S. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period. Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with applicable law and the other terms of the Indenture.
(iii)Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
(iv)Beneficial interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests in an Unrestricted Global Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A) and/or upon delivery of such legal opinions, certifications and other information as the Issuer or the Trustee may reasonably request.
(v)If no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Issuer shall issue and the Trustee shall authenticate, upon an Authentication Order, a new Unrestricted Global Note in the appropriate principal amount.
(e)Legends.
(i)Except as permitted by Section 2.2(d), this Section 2.2(e) and Section 2.2(i) of this Appendix A, each Note certificate evidencing the Global Notes and the Definitive Notes (and all Notes
issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Notes Legend”):
For Notes issued on July 25, 2020:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE LAST DATE ON WHICH DIEBOLD NIXDORF DUTCH HOLDING B.V. (THE “ISSUER”) OR ANY AFFILIATE OF THE ISSUER WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF, THE ORIGINAL ISSUE DATE OF THE ISSUANCE OF ANY ADDITIONAL NOTES AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF DUTCH HOLDING B.V. (THE “ISSUER”), DIEBOLD NIXDORF, INCORPORATED OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF €250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT.]
Each Definitive Note shall bear the following additional legend (“Definitive Notes Legend”): IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO
THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK SA/NV (“EUROCLEAR”), OR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY FOR THIS SECURITY OR ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE COMMON DEPOSITARY FOR THIS SECURITY OR ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE COMMON DEPOSITARY, EUROCLEAR OR CLEARSTREAM, TO NOMINEES OF THE COMMON DEPOSITARY, EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note shall bear the following additional legend (“ERISA Legend”):
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY CONSTITUTES THE ASSETS OF AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO TITLE I OF THE U.S. EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), OF A PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT TO WHICH SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), APPLIES, OF AN ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE “PLAN ASSETS” OF ANY SUCH EMPLOYEE BENEFIT PLAN OR PLAN, ACCOUNT OR ARRANGEMENT, OF A GOVERNMENTAL PLAN (AS DEFINED IN SECTION 3(32) OF ERISA), OF A CHURCH PLAN (AS DEFINED IN SECTION 3(33) OF ERISA) THAT HAS NOT MADE AN ELECTION UNDER SECTION 410(D) OF THE CODE, OR OF A NON-
U.S. PLAN, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY WILL NOT CONSTITUTE A NON-EXEMPT PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE OR A SIMILAR VIOLATION UNDER ANY OTHER APPLICABLE UNITED STATES FEDERAL, STATE, LOCAL, NON-U.S. OR OTHER LAWS OR REGULATIONS SIMILAR TO ERISA AND THE CODE.
For Notes issued on December 29, 2022:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY (A) TO DIEBOLD NIXDORF DUTCH HOLDING B.V. (THE “ISSUER”), DIEBOLD NIXDORF, INCORPORATED OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF €250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE ISSUER’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
Each Definitive Note shall bear the following additional legend (“Definitive Notes Legend”):
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH REGISTRAR AND TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK SA/NV (“EUROCLEAR”), OR CLEARSTREAM BANKING, SOCIÉTÉ ANONYME (“CLEARSTREAM”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY FOR THIS SECURITY OR ITS AUTHORIZED NOMINEE OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE COMMON DEPOSITARY FOR THIS SECURITY OR ITS AUTHORIZED NOMINEE, OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR OR CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, ITS AUTHORIZED NOMINEE, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO THE COMMON DEPOSITARY, EUROCLEAR OR CLEARSTREAM, TO NOMINEES OF THE COMMON DEPOSITARY, EUROCLEAR OR CLEARSTREAM OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note shall bear the following additional legend (“ERISA Legend”):
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE OR ANY OTHER
U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES
(A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR
(2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
Each Exchange Note shall bear the following additional legend (“OID Legend”):
THIS SECURITY HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR FEDERAL INCOME TAX PURPOSES (“OID”). HOLDERS MAY OBTAIN THE ISSUE PRICE, THE AMOUNT OF OID, THE ISSUE DATE AND THE YIELD TO MATURITY BY SUBMITTING A WRITTEN REQUEST FOR IT TO THE COMPANY AT C/O DIEBOLD NIXDORF, INCORPORATED, 50 EXECUTIVE PARKWAY, PO BOX 2520, HUDSON, OHIO 44236-1605, ATTENTION: CORPORATE SECRETARY.
(ii)Upon any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Registrar shall permit the Holder thereof to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes Legend and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of Note in Exhibit A) and provides such legal opinions, certifications and other information as the Issuer or the Trustee may reasonably request.
(iii)After a transfer of any Notes during the period of the effectiveness of a shelf registration statement with respect to such Notes, as the case may be, all requirements pertaining to the Restricted Notes Legend on such Notes shall cease to apply and the requirements that any such Notes be issued in global form shall continue to apply.
(f)Cancellation or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned by the Common Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment shall be made on the books and records of the Registrar to reflect such reduction.
(g)Obligations with Respect to Transfers and Exchanges of Notes.
(i)To permit registrations of transfers and exchanges, the Issuer shall execute and the Trustee shall authenticate, Definitive Notes and Global Notes at the Registrar’s request.
(ii)No service charge shall be imposed in connection with any registration of transfer or exchange (other than pursuant to Section 2.07 of this Indenture), but the Issuer may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar governmental charge payable upon exchange or transfer pursuant to Sections 2.10, 3.06, 3.10, 4.15, 4.16 and 9.05 of this Indenture).
(iii)Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent or the Registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent or the Registrar shall be affected by notice to the contrary.
(iv)All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
(v)In order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear the Restricted Notes Legend and has not been registered under the Securities Act, if the Registrar so requests or if the Applicable Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Registrar to the effect that no registration under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial holder thereof, shall be required to be delivered to the Registrar and the Trustee.
(h)No Obligation of the Trustee.
(i)The Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in Euroclear and/or Clearstream or any other Person with respect to the accuracy of the records of Euroclear and/or Clearstream or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Common Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under the Notes shall be given or made only to the registered Holders (which shall be the Common Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Common Depositary subject to the applicable rules and procedures of Euroclear and/or Clearstream. The Trustee may rely and shall be fully protected in relying upon information furnished by the Common Depositary with respect to its members, participants and any beneficial owners.
(ii)The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Euroclear and/or Clearstream participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.3 Definitive Notes.
(am)A Global Note deposited with the Common Depositary or its nominee pursuant to Section 2.1 may be transferred to the beneficial owners thereof in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) Euroclear or
Clearstream, as the case may be, notifies the Issuer that it is unwilling or unable to continue as a depositary for the Global Notes and a successor clearing agency is not appointed by the Issuer within 90 days of such notice or (ii) an Event of Default has occurred and is continuing and the Registrar has
received a request from the Common Depositary. In addition, any Affiliate of the Issuer or any Guarantor that is a beneficial owner of all or part of a Global Note may have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a written request to the Issuer and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this Indenture or the Issuer or Trustee.
(an)Any Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Common Depositary to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations. Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in denominations of €2,000 and integral multiples of €1,000 in excess thereof and registered in such names as the Common Depositary shall direct. Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise provided by Section 2.2(e) of this Appendix A, bear the Restricted Notes Legend.
(ao)The registered Holder of a Global Note may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(ap)In the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Issuer shall promptly make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
APPENDIX B
AGREED SECURITY PRINCIPLES
1.Agreed Security Principles
(a)Subject to paragraph (b) below, the guarantees and security required to be provided under the Note Documents (i) by any Note Party incorporated in a Foreign Guarantor Jurisdiction (such term as defined below) (a “Foreign Note Party”) or (ii) over the Equity Interests of a Foreign Note Party owned by any Note Party, will in each case, be given in accordance with the security principles set out in this Appendix B (these “Agreed Security Principles”). This Appendix B identifies the Agreed Security Principles and determines the extent and terms of the guarantees and security proposed to be provided (x) by the Foreign Note Parties and (y) in respect of the Equity Interests of Foreign Note Parties owned by any Note Party in relation to the Notes (or any refinancing thereof) and the other Obligations.
(b)To the extent that an interpretation of these Agreed Security Principles or a determination is required to be made hereunder in connection with the delivery of guarantees and security or the terms of the guarantees and security, such determination will be made by the Company and the Notes Collateral Agent and, with respect to any provisions relating to protections or obligations of the Trustee or the Notes Collateral Agent, the Trustee and the Notes Collateral Agent, respectively. For the avoidance of doubt, neither the Notes Collateral Agent nor the Trustee shall have any obligation to ensure that the security and guarantees provided are consistent with these Agreed Security Principles.
2.Guarantees
Subject to the guarantee limitations set out in the Note Documents, and with respect to the Foreign Note Parties, customary limitations in the relevant jurisdiction reasonably agreed by the Company and the Notes Collateral Agent, each guarantee by a Foreign Note Party will be an upstream, cross- stream and downstream guarantee for the Obligations in accordance with, and subject to, the terms of these Agreed Security Principles in each relevant jurisdiction (references to "security" to be read for this purpose as including guarantees).
3.Secured Liabilities
Security documents will secure, subject to local law restrictions, all liabilities of Note Parties under the Note Documents in accordance with, and subject to, the terms of the Agreed Security Principles in each relevant jurisdiction.
4.Overriding Principle
(a)The guarantees and security to be provided in respect of the Note Documents by Foreign Subsidiaries in accordance with these Agreed Security Principles are only to be given by Foreign Subsidiaries which are incorporated in Germany, Belgium, France, England & Wales, Sweden, Spain, Poland, Italy and the Netherlands (each a “Foreign Guarantor Jurisdiction”) and no security or guarantees shall be required to be given by Foreign Subsidiaries not incorporated in Foreign Guarantor Jurisdictions.
(b)The parties agree that the overriding intention, subject to paragraph (a) above, is for security only to be granted by, and shall be limited, to a Foreign Note Party which is incorporated in a Foreign Guarantor Jurisdiction in respect only over (and in any case only to the extent commercially and legally feasible in such Foreign Guarantor Jurisdiction):
(A)its Required Accounts (without control over use prior to a Default);
(B)its tangible moveable property;
(C)intra-group receivables owed to such Foreign Note Party;
(D)intellectual property owned by such Foreign Note Party;
(E)insurance policies;
(F)account and trade receivables owed to such Foreign Note Party;
(G)the shares and/or quotas owned in such Foreign Note Party by its direct holding company provided that such direct holding company is also a Note Party and shares owned by such Foreign Note Party in its direct subsidiaries;
(H)fee owned real property having a fair market value in excess of
$10,000,000;
(I)in the case of an English Note Party, its goodwill and uncalled capital;
(J)all of its assets by way of a qualifying floating charge (or equivalent) from an English Note Party and any other Foreign Note Party incorporated in a Foreign Guarantor Jurisdiction with a practical equivalent of an English law floating charge;
(K)tort claims, investments and contractual claims against third parties; and
(L)in the case of a security provider incorporated in Sweden, corporate mortgage (Sw. företagshypotek) over corporate mortgage registrations (Sw. företagsinteckingar).
(the “Overriding Principle”) and that no other security shall be required to be given by any other Foreign Note Party or any other person or in relation to any other asset.
(c)Without prejudice to paragraph (b) above, no guarantees shall be required to be granted by and no security shall be required to be granted by or in (i) any Subsidiary that is an Excluded Subsidiary or (ii) any asset that is an Excluded Asset.
(d)In addition, for the avoidance of doubt, no Foreign Note Party incorporated in France shall be under any obligation pursuant to these Agreed Security Principles to grant security interest on any asset if it is reasonably determined by such Foreign Note Party incorporated in France that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered). If it is reasonably determined by the Company and the Notes Collateral Agent that the applicable time and cost of obtaining such opinion would be disproportionate to the benefit accruing to the Holders of obtaining such security interest, the Foreign Note Party incorporated in France shall not launch the works council’s consultation process and shall not be under any obligation to grant the security interest on such relevant asset.
5.Governing Law and Jurisdiction of Security
(a)Except as described below, all security will be governed by the law of the jurisdiction of incorporation of the applicable grantor of the security.
(b)Share security over any subsidiary will be governed by the law of the place of incorporation of that subsidiary or of the applicable grantor, provided that such place of incorporation is a Foreign Guarantor Jurisdiction, the United States or Canada.
(c)Any security in respect of inventory and if reasonably required by the Notes Collateral Agent, other Required Accounts shall be governed by the law of the jurisdiction in which it is located, provided that the location is a Foreign Guarantor Jurisdiction, the United States or Canada.
(d)Security in relation to any receivables will be governed by the laws of the governing law of such receivables or the place of incorporation of the applicable grantor, provided that such law is the law at a Foreign Guarantor Jurisdiction.
(e)No action in relation to security (including any perfection step, further assurance step, filing or registration) will be required in jurisdictions where the applicable grantor of the security is not incorporated other than in the United States, Canada or another Foreign Guarantor Jurisdiction.
6.Terms of security documents
The following principles will be reflected in the terms of any security taken in connection with the Notes (or any refinancing thereof):
(a)security will be ranking in accordance with the lien priorities in any applicable Intercreditor Agreement;
(b)security will, to the extent possible under local law, not be enforceable until the occurrence of an Event of Default (an “Applicable Event”) which is continuing (and, with respect to security governed by the laws of the Netherlands, constitutes a default in the performance of the secured obligations);
(c)with respect to security interests granted by an Italian Note Party (or governed by Italian law) and a Spanish Note Party, an Applicable Event will be a payment default or the acceleration of the relevant secured obligations;
(d)unless as otherwise required to perfect the security or required by law (e.g. with respect to the power of attorney for the purposes of the notarization of the equity pledge security of any German Note Party or the Spanish law irrevocable power of attorney to be granted in relation to the Spanish law Security), the beneficiaries of the security or any agent will only be able to exercise a power of attorney granted by a Note Party and to exercise any withdrawal rights in respect of a secured asset following (1) the occurrence of an Applicable Event which is continuing or (2) if the relevant Note Party has failed to comply with its obligations under the relevant security documents within five Business Days of request;
(e)the security documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Note Documents; accordingly:
(i)they should not contain identical or additional representations, undertakings or indemnities (including in respect of insurance, information, maintenance or protection of assets or the payment of fees, costs and expenses) unless required for the creation or perfection of security, to maintain effective security or customary in the relevant jurisdiction;
(ii)notwithstanding anything to the contrary in any security document, the terms of a security document shall not operate or be construed so as to prohibit or restrict any transaction, matter or other step permitted by the Note Documents or where the applicable level of holder consent required by the relevant Note Document (“Required Holder Consent”) has been obtained and the Notes Collateral Agent shall (pursuant to its authority under Section 11.07 of the Indenture, and solely in accordance therewith), upon the reasonable request of a Foreign Note Party that grants Collateral (a “Chargor”) (to the extent requested by the Notes Collateral Agent), enter into such documentation and/or take such other action as is required by a Chargor (acting reasonably) in order to facilitate any such transaction, matter or other step, including by way of executing any confirmation, consent to dealing, release or other similar or equivalent document, provided that any costs and expenses incurred by the Notes Collateral Agent entering into such documentation and/or taking such other action at the request of such Chargor pursuant to this paragraph shall be for the account of such Chargor, in accordance with the costs and expenses provisions set out in the Indenture and such provision shall be included in each security document; and
(iii)the security documents should not operate so as to require additional consents or authorisations from the Holders;
(f)security will, where possible, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges or notices to be delivered in respect of future acquired assets in order for effective security to be created over that class of asset, such supplemental pledges or notices will (unless otherwise customary in the relevant jurisdiction) be provided periodically at intervals no more frequent than quarterly (unless required more frequently under local law or local market practice, including if required due to the shorter maturity of the relevant future acquired asset) (or with such higher frequency specified by the Notes Collateral Agent after the occurrence of an Applicable Event);
(g)the security documents will provide that, upon the occurrence of the date on which all Obligations (or Secured Obligations (as defined in the ABL Intercreditor Agreement, in the case of any Common Lien, as defined in the ABL Intercreditor Agreement)) (in each case other than in respect of contingent indemnification and expense reimbursement claims not then due) have been paid in full, the Notes Collateral Agent shall, at the request of and the cost and expense of the Company, and solely with respect to the Obligations (or Secured Obligations), release, reassign or retransfer the respective asset or class of assets to the relevant Note Party, and shall take all actions and execute any and all documents as may be necessary or convenient to evidence the cancellation, release and termination of all guarantees and security pursuant to Sections 10.06 and 11.07 of the Indenture without having to make or being deemed to make any representation or warranty, whether express
or implied, with respect to the relevant payor’s financial soundness and/or any asset or class of assets so released and subject to the rights of any person having prior rights over any such assets; any such release, reassignment, retransfer, cancellation or termination is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in bankruptcy, insolvency, liquidation, administration or otherwise, without limitation, then such security or guarantee will continue or be reinstated as if the release, reassignment, retransfer, cancellation or termination had not occurred;
(h)unless required by local law or customary in the relevant jurisdiction, the circumstances in which the Collateral shall be released should not be dealt with in individual security documents but, if so required, shall, except to the extent required by local law, be the same as those set out in the Note Documents;
(i)other than in each case of any German law share pledge agreement, each security document must contain a clause which records that if there is a conflict between the security document, the Indenture or any applicable Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Indenture and the applicable Intercreditor Agreement will take priority over the provisions of the security document unless and to the extent it would prejudice the legality, creation, priority, perfection, validity or enforceability of such security document or the security created under or pursuant to the security document, save with respect to the release of the security interests where applicable law and market practice require certain additional steps in order to address local law claw back issues (e.g. comfort documents);
(j)each of the security documents will, to the extent possible under local law, include a provision that provides that (i) all rights, protections, limitations on liability, exculpations and indemnifications provided or otherwise afforded to the Trustee and the Notes Collateral Agent under the Indenture, including, without limitation Article 7 of the Indenture, shall apply in all respects to the Notes Collateral Agent as chargee, security trustee or pledgee under the applicable security document, (ii) the applicable security document shall be subject to the provisions of Section 7.07 of the Indenture, which provisions shall apply to the applicable security document mutatis mutandis as though fully set forth therein, with each reference to the Issuer or Company, as applicable, being read to include the applicable chargor or pledgor, (iii) the Notes Collateral Agent may act and exercise rights under the applicable security document, but shall not be obligated to act or exercise rights under the applicable security documents (and shall not incur liability for failure to act or exercise rights) unless directed in writing by the Holders pursuant to Article 6 of the Indenture (or otherwise in accordance with the Indenture); provided that the Notes Collateral Agent shall not be required to take any action or exercise any right that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose the Notes Collateral Agent to liability (financial or otherwise) or that is contrary to any Note Document or applicable laws (for the avoidance of doubt, the Notes Collateral Agent may refrain from acting in accordance with any instructions of any Holder or group of Holders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Note Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions);
(k)subject to (or to the extent permitted by) the applicable law and in accordance with market practice, the terms of the security documents shall secure the Obligations as such Obligations (and/or the Indenture or other Note Documents) (or, where relevant, parallel
debt derived therefrom) may be amended, amended and restated, restated, supplemented, replaced, renewed, restructured, extended, refunded, refinanced or otherwise modified from time to time (including without limitation, where such transactions result in any increases or decreases of the principal amount of the Obligations, any extensions of maturity, any changes in interest rates or other economic terms, or any changes in the Secured Parties, Holders or Holders’ agents) so as to minimize the need for any additional security documents, confirmations, reaffirmations, supplements, amendments or other actions with respect to such security documents in connection with the foregoing; and
(l)each of the security documents will provide that all proceeds will be applied in accordance with the Intercreditor Agreements and Section 6.13 of the Indenture.
7.Shares and/or quotas
(a)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, the legal title of the shares and/or quotas subject to any security will remain with the relevant grantor of the security (unless transfer of title on granting such security is customary in the applicable jurisdiction and does not result in any risk of liability to the Notes Collateral Agent (as advised by the advisors to the Notes Collateral Agent or Holders)).
(b)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, any grantor of share security will be permitted to retain and to exercise all voting rights and powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition, provided that (to the extent permitted by the applicable law) such grantor must not exercise any such voting rights and powers in any manner which:
(i)has the effect of changing the rights of such shares or of any related rights with respect to such shares, unless specifically permitted by the Indenture; or
(ii)adversely affects the validity or enforceability of such share security or causes an Event of Default to occur, or is otherwise materially prejudicial to the interests of the Notes Collateral Agent and/or the Secured Parties.
(c)Where customary and applicable as a matter of law and following a request by the Notes Collateral Agent, as soon as reasonably practicable (taking into account any stamping, endorsement in blank, assignment in blank or other transfer requirements) following the granting of any share security over certificated shares or quotas, the applicable share certificate (or other documents evidencing title to the relevant shares, including any shareholder's register, as applicable) and a stock transfer form executed in blank (or applicable law equivalent) will be provided to the Notes Collateral Agent.
(d)No security shall be required to be granted over any shares or ownership interests in any person that are not directly owned by its immediate holding company.
(e)If required under local law, security over shares and/or quotas will be notarised and registered subject to the general principles set out in these Agreed Security Principles. In particular, but not limited to, to the extent applicable, security over shares and/or quotas issued by a Spanish company will be registered in the relevant registry book of shareholders (libro registro de acciones nominativas) and/or the relevant registry book of
quotaholders (libro registro de socios) or with the relevant depositary entity and on the titles to property over the shares/quotas; with respect to shares in Polish companies, the information on establishment of share security will be entered into the book of shares (księga udziałów) and into the list of shareholders (lista wspólników), which will be filled together with motions for registrations of registered pledges over shares in each Polish company within the relevant registry courts.
(f)Unless the restriction is required by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer, approval requirements or the registration of the transfer of the shares on enforcement of the security granted over them or to allow exercising voting rights by the Notes Collateral Agent or to allow the Notes Collateral Agent to convene a general meeting. To the extent applicable, the applicable grantor of the security will use its commercially reasonable efforts to obtain the registration of any needed amendment of the by-laws with the relevant mercantile registry as soon as practicable.
8.Bank accounts
(a)Until an Applicable Event has occurred and is continuing, unless the Indenture expressly provides for any specific account (by reference to its purpose) to be subject to specific restrictions on use, any Note Party will be free to deal, operate and transact business in relation to any bank accounts over which it grants security (including opening and closing accounts) until the occurrence of an Applicable Event which is continuing.
(b)If required by local law to create or perfect the security, notice of the security will be served on the account bank in relation to applicable accounts within five (5) Business Days of the creation or intended creation of the security over such account, and the applicable grantor of the security will use its commercially reasonable efforts to obtain a signed acknowledgement of that notice. Irrespective of whether notice of the security is required for perfection, if the service of notice would prevent any member of the Group from using a bank account in the course of its business, no notice of security will be served until the occurrence of an Applicable Event that is continuing.
(c)Any security over bank accounts will be subject to any security interests in favour of the account bank, which are created either by law or in the standard terms and conditions of the account bank. No grantor of security will be required to change its banking arrangements or standard terms and conditions in connection with the granting of bank account security, but will, in relation to accounts in Germany, the Netherlands and Belgium, be required to request the account bank to waive such liens pursuant to its general terms and conditions.
(d)[Reserved].
(e)If any bank account is required to be opened as a matter of local law in order to perfect any share security required to be granted in accordance with these Agreed Security Principles,
(i) such bank account shall not be required to be opened prior to the date falling 90 days after such share security is granted and (ii) the Holders authorise the Notes Collateral Agent to enter into any documentation requested by the applicable account bank in connection with such security.
(f)If required under applicable local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
9.Moveable Property
(a)A Foreign Note Party shall grant security over its moveable property, subject to the general principles in these Agreed Security Principles.
(b)No security over inventory needs to be granted by a Foreign Note Party if no security needs to be granted under the ABL Facility.
(c)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Note Documents, the Foreign Note Party providing the security is permitted to dispose of and use its moveable assets in accordance with the terms of the Indenture.
(d)If the granting of effective security over moveable assets gives rise to registration costs or similar taxes or costs, the secured amount under such security will be proportionate to the value of the underlying moveable asset (together with such buffer as may be reasonably agreed by the Notes Collateral Agent with the Company to reflect the fluctuating nature of the asset class), and ‘mandates’ to grant security will be granted where customary.
10.Insurance Policies
(a)Each Foreign Note Party shall grant security over its insurance policies, subject to the general principles in these Agreed Security Principles and other than insurance proceeds which (i) are payable to third parties, such as proceeds under life, health, group insurance or similar third parties liability insurance policies or (ii) benefit to employees and/or directors, if any.
(b)No security will be granted over any insurance policy which does not allow security to be granted or which excludes the assignability of the insurance receivables, other than where such grant of security or such assignment is subject only to the consent of the relevant insurer. The provisions of this paragraph shall not operate to jeopardise any floating charge nor any assignment or other security interest over any and all damages, compensation, proceeds or other income attributable to such insurance policies which such Foreign Note Party may be entitled (or which such Foreign Note Party may be awarded or otherwise derive therefrom).
(c)If required by local law to perfect the security or customary in the relevant jurisdiction, notice of the security will be served on the insurer within five Business Days (or less if required or customary under local law) of the security being granted and such Foreign Note Party shall use its commercially reasonable efforts to obtain a signed acknowledgement of that notice.
11.Intellectual property
(a)A Foreign Note Party shall grant security over its intellectual property, subject to the general principles in these Agreed Security Principles.
(b)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Note Documents, such Foreign Note Party shall be free to deal with, use, licence and
otherwise commercialise those assets in the course of its business (including allowing its intellectual property to lapse if no longer material to its business) to the extent permitted under the Indenture.
(c)No security will be granted over intellectual property which cannot be secured under the terms of any relevant licensing agreement.
(d)If required under local law to create or perfect the relevant security, security over intellectual property shall be notarized and/or registered under the law of the jurisdiction of incorporation or formation of the applicable grantor, and no filings, registrations or other steps shall be required to be taken pursuant to the law of any other jurisdiction other than the United States, Canada or the United Kingdom, subject to the general principles set out in these Agreed Security Principles.
(e)Security over intellectual property rights will be taken on an “as is, where is” basis and such Foreign Note Party will not be required to procure any changes to, or corrections of filings on any registers (unless, subject to this Appendix, such changes to, or corrections of, filings are required to validly create such Security).
12.Receivables
(a)A Foreign Note Party shall grant security over its receivables, subject to the general principles in these Agreed Security Principles.
(b)In respect of security over receivables (other than intra-group receivables), notice of the security shall be served on the relevant debtor (other than an intercompany debtor) immediately after an Event of Default, which is continuing. Notice of security over intercompany receivables shall be served on the relevant intercompany debtor within five
(5) Business Days of the creation of the security over such receivables.
(c)Each Foreign Note Party will use commercially reasonable efforts to amend, after the Issue Date, the respective receivable invoices to mention the Notes Collateral Agent’s security interest in such receivables to the extent required under the laws of the local jurisdiction of the Foreign Note Party to perfect the security interest.
(d)The Notes Collateral Agent will receive a floating charge with respect to receivables to the extent a floating charge can be created under local law.
(e)If required under local law, security over intercompany receivables will be registered and notified to the relevant intra-group debtor subject to the general principles set out in this Appendix.
(f)If a Foreign Note Party grants security over its receivables, it shall be free to deal with, amend, waive or terminate those receivables in the course of its business and in accordance with the terms of the Indenture until the occurrence of an Applicable Event (other than any amendments or waivers that would materially adversely prejudice the rights of the Secured Parties).
(g)No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract or if the terms of the relevant contract exclude the assignability of the trade receivables (unless such restrictions are set aside by overriding
principles of applicable law). The provisions of this paragraph shall not operate to jeopardise any floating charge, any other security interest in respect of such receivables which is not restricted, any trust arrangement in respect of such receivables or any assignment or other security interest over any and all damages, compensation, proceeds, remuneration, profit, rent or other income attributable to such trade receivables which the Foreign Note Party may be entitled (or which such Foreign Note Party may be awarded or otherwise derive therefrom).
(h)If required under local law security over trade receivables will be registered subject to the general principles set out in this Appendix.
(i)Any list of receivables required to be delivered under any security document will not include details of the underlying contracts (but may include non-sensitive generic information to the extent that would allow for the creation of security) unless required under local law or required to enforce the security.
(a)With respect to a French Note Party, such French Note Party will grant security over its commercial receivables by way of assignment of any existing or future receivable (créance existante ou future) due or to be due by any existing or future debtor to such French Note Party, in each case as originated by such French Note Party, pursuant to articles L. 313-23 et seq. of the French Monetary and Financial Code (Code monétaire et financier).
13.Additional Principles
These Agreed Security Principles embody the recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or commercially reasonable guarantees and/or security from Foreign Note Parties in each jurisdiction in which it has been agreed that guarantees and security will be granted by those Foreign Note Parties. In particular:
(a)general legal and statutory limitations, regulatory restrictions (including foreign exchange controls), financial assistance, anti-trust and other competition authority restrictions, corporate object, corporate benefit, fraudulent preference, legal and equitable subordination, "transfer pricing", "thin capitalisation", "earnings stripping", "exchange control restrictions", "capital maintenance" rules and "liquidity impairment" rules, tax restrictions, retention of title claims, employee consultation or approval requirements and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited accordingly, provided that, to the extent requested by the Notes Collateral Agent or the Trustee before signing any applicable security or accession document, the relevant member of the group consisting of the Company and its Subsidiaries (the “Group”) shall use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(b)a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or registration) is the applicable time and cost (including adverse effects on taxes, interest deductibility, stamp duty, registration taxes, notarial costs, guarantee fees payable to any person that is not a member of the Group and all applicable legal fees) which will not be disproportionate to the benefit accruing to
the Holders of obtaining such guarantee or security, as determined by the Company and the Notes Collateral Agent);
(c)unless otherwise required by the Indenture, members of the Group will not be required to give guarantees or enter into security documents if they are not directly or indirectly wholly owned by the Company or if it is not within the legal capacity of the relevant members of the Group or if it would conflict with the fiduciary or statutory duties of their directors or contravene any applicable legal, regulatory or contractual prohibition or restriction or have the potential to result in a material risk of personal or criminal liability for any director or officer of or for any member of the Group, provided that, to the extent requested by the Notes Collateral Agent or the Trustee before signing any applicable security document or accession document, the relevant member of the Group shall, in relation to a contractual prohibition or restriction only, use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(d)having regard to the principle in paragraph (b) above, the Company and the Notes Collateral Agent shall discuss in good faith (having regard to customary practice in applicable jurisdictions) with a view to determining whether certain security can be provided by the relevant Foreign Note Party granting a promise to pledge in favour of the Secured Parties coupled with an irrevocable power of attorney to the Notes Collateral Agent as opposed to a definitive legal mortgage or pledge over the relevant asset;
(e)guarantees and security will be limited so that the aggregate of notarial costs and all registration and like taxes and duties relating to the provision of security will not exceed an amount to be agreed between the Company and the Notes Collateral Agent;
(f)where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security to the Secured Parties, as determined by the Company and the Notes Collateral Agent, security will be granted over the material assets only;
(g)it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets, as determined by the Company and the Notes Collateral Agent, in which event security will not be taken over such assets;
(h)in each case to the extent the applicable restriction, condition or third party right did not arise in contemplation of the relevant guarantee or grant of security, any asset subject to a legal requirement, contract, lease, licence, instrument, regulatory constraint (including any agreement with any government or regulatory body) or other third party arrangement, which may prevent or condition the asset from being charged, secured or being subject to the applicable security document (including requiring a consent of any third party, supervisory board or works council (or equivalent)) and any asset which, if subject to the applicable security document, would give a third party the right to terminate or otherwise amend any rights, benefits and/or obligations with respect to any member of the Group in respect of the asset or require the relevant chargor to take any action materially adverse to the interests of the Group or any member thereof, in each case will be excluded from a guarantee or security document, provided that commercially reasonable efforts to obtain consent to securing any asset (where otherwise prohibited) shall be used by the Group if the Notes Collateral Agent specifies prior to the date of the security or accession document
that the asset is material and the Company is satisfied that such endeavors will not involve placing relationships with third parties in jeopardy;
(i)the giving of a guarantee, the granting of security and the registration and/or the perfection of the security granted will not be required if it would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Note Documents (including dealing with the secured assets and all contractual counterparties or amending, waiving or terminating (or allowing to lapse) any rights, benefits or obligations, in each case prior to an Applicable Event which is continuing), and any requirement under these Agreed Security Principles to seek consent of any person or take or not take any other action shall be subject to this paragraph (i);
(j)any security document will only be required to be notarised if required by law in order for the relevant security to become effective (including against third parties), enforceable or admissible in evidence (including without limitation evidence before third parties);
(k)to the extent possible and unless required by applicable law in order for any assignee or transferee to benefit from the guarantees or security, there should be no action required to be taken in relation to the guarantees or security when any secured party assigns or transfers any of its participation to a new secured party (and, unless explicitly agreed to the contrary in the Note Documents, no Foreign Note Party shall bear or otherwise be liable for any taxes, any notarial, registration or perfection fees or any other costs, fees or expenses that result from any transfer by a Holder except if an Applicable Event has occurred and is continuing);
(l)no title investigations or other diligence on assets will be required and no title insurance will be required;
(m)security will not be required over any cash constituting regulatory capital or customer cash (and such assets or cash shall be excluded from any relevant security document);
(n)to the extent legally effective, all security will be given in favour of the Notes Collateral Agent and not the Secured Parties individually (with the Notes Collateral Agent to hold one set of security documents for all the Secured Parties unless otherwise required by local law); "parallel debt" provisions will be used where necessary and recognised; for the avoidance of doubt, in relation to accessory security under German law (akzessorische Sicherheiten), such security will be given in favour of the Notes Collateral Agent and the Secured Parties; it is acknowledged that certain security will be granted for those Secured Parties that satisfy any local law requirements necessary to benefit from such security;
(o)each security document shall be deemed not to restrict or condition any transaction permitted under the Note Documents and the security granted under each security document entered into after the Issue Date shall be deemed to be subject to these Agreed Security Principles, before and after the execution of the relevant security document and creation of the relevant security;
(p)each security document must be provided on terms which are not inconsistent with the turnover or sharing provisions in the Domestic Guarantee Agreement, the Foreign Guarantee Agreement and/or the Indenture;
(q)no guarantee or security shall guarantee or secure any "Excluded Swap Obligations" defined in accordance with the LSTA Market Advisory Update dated February 15, 2013 entitled "Swap Regulations' Implications for Note Documentation", and any update thereto by the LSTA;
(r)no translation of any document relating to any security or any asset subject to any security will be required to be prepared or provided to the Secured Parties, unless (i) any document which is to be signed by the Notes Collateral Agent or any notice to be delivered to the Notes Collateral Agent or (ii) required for such documents to become effective or admissible in evidence or (iii) an Applicable Event is continuing; and
(s)local security documents may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and delivery of an executed counterpart to any security document by facsimile transmission or other electronic transmission (such as .pdf) shall be effective as delivery of a manually signed counterpart, in each case to the extent such execution is effective under local law.
14.Amendment
In any event of any material conflict or material inconsistency between any term of these Agreed Security Principles and any term of a Collateral Document or a guarantee, the Secured Parties authorize, instruct and direct the Notes Collateral Agent to, and the Notes Collateral Agent (or the Secured Parties, if required under the relevant jurisdiction) shall promptly (at the option and upon request of the Company prior to the occurrence of a Default which is continuing) (i) enter into (and notarise if required under the relevant jurisdiction) such amendments to such Collateral Document or guarantee or (ii) release and terminate such Collateral and enter into a replacement Collateral Document or guarantee on such amended terms, in each case as shall be necessary or desirable to cure such conflict or inconsistency, provided that (1) any such action (including any actions to be taken by the Holders) will be at the sole cost of the Company; (2) the relevant Note Party shall deliver all corporate authorities and legal opinions as may be required by the Notes Collateral Agent; and (3) no such action will be required to be taken in the event such amendment or replacement Collateral Document or guarantee would result in any hardening period or clawback period to be reset.
15.Execution of applicable Intercreditor Agreements
Any Foreign Note Party, existing on the Issue Date or hereinafter incorporated, shall sign or acknowledge, as applicable, any Intercreditor Agreement.
APPENDIX C
FOREIGN COLLATERAL DOCUMENTS
| | | | | |
| Jurisdiction | Security Documents |
Belgium | 1.A Belgian law governed Omnibus Pledge Agreement covering receivables, bank accounts and the business; and
2.Deposit account control agreement(s). |
| | | | | |
France | 1.Master Daily Assignment Agreement (ABL);
2.First Ranking Bank Accounts Pledge Agreement (ABL);
3.Deposit account(s) control agreement(s) (ABL);
4.First Ranking Intragroup Receivables Pledge Agreement (ABL);
5.Fourth Ranking Pledge of Securities Account Agreement (ABL), together with the related statement of pledge;
6.First Ranking Pledge over future refunding receivables agreement (superpriority credit agreement);
7.Second Ranking Bank Accounts pledge agreement (superpriority credit agreement);
8.Second Ranking Intragroup Receivables Pledge Agreement (superpriority credit agreement);
9.First Ranking Pledge of securities account agreement (superpriority credit agreement), together with the related statement of pledge;
10.Second Ranking Pledge over future refunding receivables agreement (2025 U.S. notes);
11.Third Ranking Bank Accounts Pledge Agreement (2025 U.S. notes);
12.Third Ranking Intragroup Receivables Pledge Agreement (2025 U.S. notes);
13.Second Ranking Pledge of Securities Account Agreement (2025 U.S. notes), together with the related statement of pledge;
14.Second Ranking Pledge over future refunding receivables agreement (2025 E.U. notes);
15.Third Ranking Bank Accounts Pledge Agreement (2025 E.U. notes);
16.Third Ranking Intragroup Receivables Pledge Agreement (2025 E.U. notes); |
| | | | | |
| Jurisdiction | Security Documents |
| 17.Second Ranking Pledge of Securities Account Agreement (2025 E.U. notes), together with the related statement of pledge;
18.Second Ranking Pledge over future refunding receivables agreement (2025 credit agreement);
19.Third Ranking Bank Accounts Pledge Agreement (2025 credit agreement);
20.Third Ranking Intragroup Receivables Pledge Agreement (2025 credit agreement);
21.Second Ranking Pledge of Securities Account Agreement (2025 credit agreement), together with the related statement of pledge;
22.Third Ranking Pledge over future refunding receivables agreement (2026 notes);
23.Fourth Ranking Bank Accounts Pledge Agreement (2026 notes);
24.Fourth Ranking Intragroup Receivables Pledge Agreement (2026 notes); and
25.Third Ranking Pledge of Securities Account Agreement (2026 notes), together with the related statement of pledge. |
Germany | 1.German Receivables Assignment Agreement;
2.German Bank Account Pledge Agreement;
3.Transfer Agreement over Inventory;
4.GmbH Share Pledge Agreement;
5.KG Interest Pledge Agreement; and
6.IP Assignment Agreement. |
Italy | 1.Italian Bank Account Pledge Agreement;
2.Italian Agreement for the Assignment by way of Security of Receivables; and
3.Notarial quota pledge over the Italian company. |
Netherlands | 1.A Dutch law governed security agreement purporting to create security over all Dutch assets, i.e. omnibus security (including A/R, inventory, bank accounts, IP, etc.); |
| | | | | |
| Jurisdiction | Security Documents |
| 2.Dutch notarial deed of pledge of shares – Diebold Nixdorf Dutch Holding B.V.;
3.Dutch notarial deed of pledge of shares – Diebold Nixdorf Global Holding B.V.;
4.Dutch notarial deed of pledge of shares – Diebold Nixdorf B.V.;
5.Dutch notarial deed of pledge of shares – Diebold Nixdorf Global Solutions B.V.;
6.Dutch notarial deed of pledge of shares – Diebold Nixdorf Software Partner B.V.;
7.Dutch partnership interest security agreement – Diebold Nixdorf Software Partner C.V.; and
8.Dutch IP security agreement – WINCOR NIXDORF International GmbH, Diebold Nixdorf, Incorporated and Diebold Nixdorf Systems GmbH. |
Poland | 1.Assignment of rights under commercial contracts and insurance agreements - Diebold Nixdorf sp. z o.o.;
2.Assignment of rights under commercial contracts and insurance agreements - Diebold Nixdorf BPO sp. z o.o.;
3.Agreement for civil and registered pledges over bank accounts - Diebold Nixdorf sp. z o.o.;
4.Agreement for civil and registered pledges over bank accounts - Diebold Nixdorf BPO sp. z o.o.;
5.Power of attorney to the bank accounts - Diebold Nixdorf sp. z o.o.;
6.Power of attorney to the bank accounts - Diebold Nixdorf BPO sp. z o.o.; 7.Agreement for registered pledge over movable property and rights - Diebold Nixdorf sp. z o.o.;
8.Agreement for registered pledge over movable property and rights - Diebold Nixdorf BPO sp. z o.o.;
9.Agreement on the ordinary and registered pledges over shares in Diebold Nixdorf sp. z o.o.;
10.Agreement on the ordinary and registered pledges over shares in Diebold Nixdorf BPO sp. z o.o.; |
| | | | | |
| Jurisdiction | Security Documents |
| 11.Submission to enforcement - Diebold Nixdorf sp. z o.o.; and
12.Submission to enforcement - Diebold Nixdorf BPO sp. z o.o. |
Spain | 1.Spanish pledge over quota shares in Diebold Nixdorf, S.L.
2.Spanish law amendment, extension and ratification of the Spanish pledge over credit rights, bank account pledge, inventory pledge and ancillary irrevocable power of attorney granted by the Spanish Loan Parties
3.Deposit Account Control Agreement; and
4.Deed of irrevocable power of attorney to be granted in favor of the collateral agent related to the pledge over quota shares |
Sweden | 1.Receivables pledge/assignment agreement;
2.Bank account pledge agreement;
3.Share pledge agreement over the shares in the Swedish company;
4.Business mortgage pledge agreement; and
5.Insurance pledge agreement. |
UK | 1.English law security agreement (i.e. the English law debenture);
2.English law share charge;
3.English law floating charge;
4.Deposit account control agreement(s);
5.a charge over UK IP held by non-UK Loan Parties; and
6.a charge over UK bank accounts held by US and Canadian Loan Parties. |
APPENDIX D
POST-CLOSING MATTERS
Section 1. Less than 30 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
1. | UK | Diebold Nixdorf (UK) Limited to deliver notices to its UK account banks in the agreed form as between UK counsel | On the Issue Date |
2. | Belgium | Diebold Nixdorf BV (Belgium) will deliver to the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) the certificate of receivables pledge, duly printed on its letterhead and executed by an authorised representative | On the Issue Date |
3. | Belgium | Diebold Nixdorf BV (Belgium) will register the omnibus pledge agreement with the National Pledge Register | On the Issue Date |
4. | Netherlands | Registration of the Dutch law governed security agreement dated on Issue Date and made among the Dutch Guarantors as pledgors and the Notes Collateral Agent as pledgee (the "Dutch Security Agreement") | 2 Business Days from the Issue Date |
5. | Netherlands | Delivery of the notices required to be sent to Group Companies and/or Insurance Companies (as defined therein) pursuant to the Dutch Security Agreement | As provided for the Dutch Security Agreement |
6. | Poland | Delivery of notices to the Insurance Companies (if any) of the assignment in accordance with the paragraph 2.7 a) of the Polish Assignment of Rights agreement | 5 Business Days from the Issue Date |
7. | Sweden | Delivery of a duly executed application form in regards to the Swedish corporate mortgage | 5 Business Days from Issue Date |
8. | Belgium | Diebold Nixdorf BV (Belgium) is to deliver notices to its account banks in the agreed form as between Belgian counsel. | Within 5 Business Days from the Issue Date |
9. | Belgium | Diebold Nixdorf BV (Belgium) is to deliver notices in relation to disclosed receivables to the relevant debtors in the agreed form as between Belgian counsel. | Within 5 Business Days from the Issue Date |
| 10 | Germany | Notice to the accounts banks of the pledge over the existing deposit accounts under the German law account pledge agreement (initial notice) | Within 5 Business Days from the Issue Date |
| | | | | | | | | | | |
| 11 | Germany | The German Guarantors shall deliver notice to the relevant Debtors of the assignment of the Intra-Group Receivables under the German law security assignment agreement | Within 5 Business Days from the Issue Date |
| 12 | Germany | The German Guarantors shall deliver to the relevant Debtors (insurance company) of the assignment of the Insurance Claims under the German law security assignment agreement | Within 5 Business Days from the Issue Date |
| 13 | Poland | Execution of Polish submission to enforcement by Polish Guarantors before notary in Poland | 7 Business Days from the Issue Date |
| 14 | Poland | Filing with a relevant registration court the applications for registration of the registered pledges in accordance with each (i) Polish agreement for registered pledge over enterprise; and (ii) Polish agreement for civil and registered pledges over bank accounts. | 7 Business Days from the Issue Date |
| 15 | Poland | Filing with each account bank the notice on the creation of each civil pledge established in accordance with each Polish agreement for civil and registered pledges over bank accounts | 7 Business Days from the Issue Date |
| 16 | UK | Registration by Ashurst LLP of the English debenture executed at Closing | 21 days from the Issue Date |
| 17 | UK | Wincor Nixdorf International GmbH to deliver original share certificates and stock transfer forms executed in blank in relation to its shares in Diebold Nixdorf (UK) Limited to the Superpriority Credit Facility Collateral Agent | 21 days from the Issue Date |
| 18 | US | A New York Law intellectual property Security Agreement in respect of US-registered intellectual property owned by Foreign Loan Parties. | 21 days from the Issue Date |
| 19 | US | Joinders to the Intercompany Subordination Agreement | 21 days from the Issue Date |
| 20 | US | Deliver to the Superpriority Credit Facility Collateral Agent original share certificates and related stock transfer forms executed in blank and promissory notes and related allonges, in each case, constituting Collateral | 21 days from the Issue Date |
Section 2. 30 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
Security Documents |
| 1. | Sweden | A Swedish law governed insurance pledge agreement between each Swedish Guarantor as pledgor and the Notes Collateral Agent as pledgee | 30 days from the Issue Date |
| 2. | Sweden | Notice under Swedish Account pledge to applicable Required Accounts depository banks (although email notice to be sent on Issue Date) | 30 Business Days from the Issue Date |
| 3. | UK | An English law governed bank account charge between Diebold Nixdorf, Incorporated as chargor and the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) | 30 days from the Issue Date |
| 4. | UK | An English law governed bank account charge between Diebold Nixdorf Canada Limited as chargor and the Controlling Senior Representative (as defined in the ABL Intercreditor Agreement) | 30 days from the Issue Date |
| 5. | Spain | Notarisation of a Spanish law pledge over credit rights between the Spanish Loan Parties as pledgor, the lenders under the ABL Facility and the Notes Collateral Agent as pledgees and the extension and ratification of the ancillary irrevocable power of attorney. | 30 days from the Issue Date |
Other |
| 6. | Sweden | Notice in relation to the Swedish insurance pledge to be delivered by the Swedish Guarantors | 5 Business Days from entering into the Swedish Insurance Pledge |
Section 3. 90 day post-closing requirements
| | | | | | | | | | | |
| No. | Jurisdiction | Item | Deadline |
Security Documents |
1. | German | A German law share pledge agreement in respect of the shares of Diebold Nixdorf Holding Germany GmbH, WINCOR NIXDORF International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, WINCOR NIXDORF Facility GmbH, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Nixdorf Finance Germany GmbH and Diebold Nixdorf Global Logistics GmbH between Diebold Nixdorf, Incorporated, Diebold Nixdorf Holding Germany, WINCOR NIXDORF International GmbH and Diebold Nixdorf Logistics GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
2. | German | A German law interest pledge over the general partner's interest held by Diebold Nixdorf Security GmbH and the limited partner's interest held by WINCOR NIXDORF Facility GmbH in Diebold Nixdorf Real Estate GmbH & Co. KG | 90 days from the Issue Date |
3. | German | A German law assignment agreement relating to intellectual property between Diebold Nixdorf Holding Germany GmbH, WINCOR NIXDORF International GmbH, Diebold Nixdorf Systems GmbH, Diebold Nixdorf Deutschland GmbH, Diebold Nixdorf Logistics GmbH, WINCOR NIXDORF Facility GmbH, Diebold Nixdorf Business Administration Center GmbH, IP Management GmbH, Diebold Nixdorf Vermögensverwaltungs GmbH, Diebold Nixdorf Security GmbH, Diebold Nixdorf Operations GmbH, Diebold Nixdorf Finance Germany GmbH and Diebold Nixdorf Global Logistics GmbH as assignors and the Notes Collateral Agent as assignee | 90 days from the Issue Date |
4. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf B.V between WINCOR NIXDORF International GmbH, as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf B.V. as company | 90 days from the Issue Date |
5. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Software Partner B.V. between Diebold WINCOR NIXDORF International | 90 days from the Issue Date |
| | | | | | | | | | | |
| | GmbH as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Software Partner B.V. as company | |
6. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Dutch Holdings B.V. between Diebold Nixdorf, Incorporated as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Dutch Holdings B.V. as company | 90 days from the Issue Date |
7. | Netherlands | A Dutch law governed notarial deed of pledge of shares in respect of the shares in Diebold Nixdorf Global Holdings B.V. between Diebold Nixdorf, Incorporated as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Global Holdings B.V. as company | 90 days from the Issue Date |
8. | Netherlands | A Dutch law governed share pledge in respect of the shares in Diebold Nixdorf Global Solutions B.V. between Diebold Nixdorf Software C.V. as pledgor, the Notes Collateral Agent as pledgee and Diebold Nixdorf Global Solutions B.V. as company | 90 days from the Issue Date |
9. | Netherlands | A Dutch law governed partnership interest security agreement in respect of the partnership interest in Diebold Nixdorf Software C.V. between Diebold Nixdorf Global Holdings, B.V. and IP Management GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
10 | Netherlands | A Dutch law governed notarial deed of change of priority in relation to the existing Dutch notes security between U.S. Bank Trustees Limited, U.S. Bank National Association and the Notes Collateral Agent | 90 days from the Issue Date |
11 | Netherlands | A Dutch law governed IP security agreement between WINCOR NIXDORF International GmbH, Diebold Nixdorf, Incorporated and Diebold Nixdorf Systems GmbH as pledgors and the Notes Collateral Agent as pledgee | 90 days from the Issue Date |
12 | Netherlands | Registration of the Dutch notarial deeds of pledge in the original shareholders register of each Dutch company (done by Stibbe notary) | 90 days from the Issue Date |
13 | Italy | A notarial quota pledge over the Italian Guarantors between WINCOR NIXDORF International GmbH, as pledgor and the Notes Collateral Agent as pledgee - to be executed before Saville in London by Saville's clerks on behalf of the Notes Collateral Agent (acting on behalf of all the secured parties) on the basis of a PoA already executed and issued by the Notes Collateral Agent | 90 days from the Issue Date |
14 | Spain | Notarisation of a Spanish law governed quota share pledge in respect of the quota shares in the Spanish Guarantors | 90 days from the Issue Date |
| | | | | | | | | | | |
| | between WINCOR NIXDORF International GmbH, as pledgor, lenders under the ABL Facility and the Notes Collateral Agent as pledgees and the extension and ratification of the ancillary irrevocable power of attorney. | |
15 | Spain | Deed of irrevocable power of attorney to be granted in favor of the Notes Collateral Agent related to the pledge over quota shares | 90 days from the Issue Date |
16 | Spain | Notarisation of the Spanish law amendment, extension and ratification of the Spanish pledge over bank account pledge, inventory pledge and ancillary irrevocable powers of attorney granted by the Spanish Guarantors | 90 days from the Issue Date |
17 | Spain | Spanish public deed raising to the status of Spanish public document a pdf executed copy of the Indenture | 90 days from the Issue Date |
18 | Spain | Spanish public deed raising to the status of Spanish public document a pdf executed copy of the Multi Lender ICA and the Junior Lien ICA | 90 days from the Issue Date |
19 | France | Pursuant to the French Pledge of Securities Account Agreements, the French Guarantors shall procure that the Special Account Provider shall (1) open the Special Account and provide forthwith the banking details to the Notes Collateral Agent and (2) procure that a signed Special Account Confirmation of Pledge ("attestation de constitution de nantissement de compte fruits et produits") is delivered to the Notes Collateral Agent with respect to the Special Account. | 90 days from the Issue Date |
20 | Sweden | A Swedish law governed share pledge in respect of the shares in the Swedish Guarantors between WINCOR NIXDORF International GmbH, as pledgor and the Notes Collateral Agent as pledgee. For the perfection of the Swedish share pledge, WINCOR NIXDORF International GmbH shall on the day of entering into the share pledge (i) deliver to the Superpriority Credit Facility Collateral Agent original share certificate(s) evidencing the shares pledged, duly endorsed in blank, (ii) send a notice of the pledge to the Swedish company and (iii) procure that the pledge is duly registered in the Swedish company's share register. | 90 days from the Issue Date |
21 | Poland | Polish law agreement on the ordinary and registered pledges over shares in Diebold Nixdorf sp. z o.o. | 90 days from the Issue Date |
| | | | | | | | | | | |
22 | Poland | Polish law agreement on the ordinary and registered pledges over shares in Diebold Nixdorf BPO sp. z o.o. | 90 days from the Issue Date |
23 | UK | English law charge over UK IP held by non-UK Guarantors | 90 days from the Issue Date |
24 | US | New York law pledge agreement by Diebold Nixdorf Global Holding B.V. in respect of (a) the membership interests of Diebold Mexico Holding Company, LLC and (b) the securities of Diebold Nixdorf Canada Limited | 90 days from the Issue Date |
25 | US | The Company and the Domestic Guarantors shall cause (i) each liability policy of insurance (other than directors' and officers' policies and workers' compensation policies) to name the Notes Collateral Agent, on behalf of the Secured Parties, as an additional insured thereunder as its interests may appear and (ii) each property insurance policy to contain a loss payable clause and endorsement that names the Notes Collateral Agent, on behalf of the Secured Parties, as the loss payee thereunder | 90 days from the Issue Date |
Other |
26 | Spain | A notarised and apostilled power of attorney to be granted by each pledgee under the Spanish inventory pledge, appointing their counsel to execute the amendments to the Spanish inventory pledge, bank account pledge and the inventory pledge and ratification of ancillary irrevocable power of attorney before notary. | On or prior to the date of execution of the amendments to the Spanish security documents |
27 | Spain | Spanish public documents need to be executed before the Spanish notary. | On or prior to the date of execution of the amendments to the Spanish security documents |
28 | Spain | Pledge over quota shares: notarisation of the deed of pledge as Spanish Public Document and registration of the pledge in the registry book of shareholders. | On or prior to the date of execution of the amendments to the Spanish security documents |
29 | Italy | (i) Delivery of the original deed to an Italian notary appointed by the company for its deposit in the competent register; and (ii) issuance of the Italian validity legal opinion on the security document from Ashurst Milano. | 90 days from the Issue Date |
| | | | | | | | | | | |
30 | Netherlands | A notarised and apostilled power of attorney to be granted by the Notes Collateral Agent in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
31 | Netherlands | A notarised and apostilled power of attorney to be granted by WINCOR NIXDORF International GmbH in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
32 | Netherlands | A notarised and apostilled power of attorney to be granted by Diebold Nixdorf, Incorporated in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
33 | Netherlands | Notarised powers of attorney to be granted by each of the Dutch entities in relation to the Dutch notarial deeds of pledge of shares referred to above. | On or prior to the date the Dutch notarial deeds of pledge of shares are executed |
34 | German | A power of attorney to be granted by the Notes Collateral Agent as pledgee under the German law share pledge agreements, appointing its counsel to execute the German law share pledge agreements before notary | On or prior to the date the German law share pledge agreements are executed |
35 | Poland | Evidence of filing duly completed applications with respect to registered Polish law pledges over shares, together with evidence of payment of all relevant court fees and/or stamp duties; | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
36 | Poland | List of shareholders evidencing the establishment of Polish law ordinary and registered pledge over shares | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
| | | | | | | | | | | |
37 | Poland | Poland: share register evidencing the establishment of ordinary and registered pledge over shares | 5 business days after the date of the Polish law agreement on the ordinary and registered pledges over shares |
38 | Sweden | Delivery of original share certificate, endorsed in blank, of Swedish Guarantors to the security agent | On the day of entering into of the security agreement |
39 | Poland | Evidence of filing or of dispatch of duly completed notices and confirmations (in the form set out in the security assignment agreement) for any assigned rights under the security assignment agreement | 90 days from the Issue Date |
40 | Poland | Evidence of filing duly completed applications, notices to account banks and acknowledgements in relation to pledges over enterprise and over the bank accounts and shares (as applicable), together with evidence of payment of all relevant court fees and/or stamp duties | 90 days from the Issue Date |
41 | Poland | Registration of registered pledges over enterprise, bank accounts and shares | 90 days from the Issue Date |
42 | Poland | Subject to provisions of the ABL Credit Agreement, Diebold Nixdorf BV shall procure to obtain the fully executed deposit account control agreement by each of the account banks in respect of each collection account. Diebold Nixdorf BV shall deliver to the pledgee and the notes representative a copy of the acknowledgment, duly executed by each account bank, in the timeframe specified in the ABL Credit Agreement. | 90 days from the Issue Date |
EXHIBIT A
[FORM OF FACE OF NOTE]
[Insert the Restricted Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Global Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the Definitive Notes Legend, if applicable, pursuant to the provisions of the Indenture]
[Insert the ERISA Legend, if applicable, pursuant to the provisions of the Indenture.] [Insert the OID Legend, if applicable, pursuant to the provisions of the Indenture.]
Common Code [•]
[RULE 144A][REGULATION S][IAI][GLOBAL] NOTE
9.000% Senior Secured Notes due 2025
No. [RA- ] [RS- ] [RIAI- ] [U- ] [Up to]2 [€ ]
DIEBOLD NIXDORF DUTCH HOLDING B.V.
promises to pay to [name of nominee of Common Depositary]3 [ ] or registered assigns the principal sum [set forth on the Schedule of Exchanges of Interests in the Global Note attached hereto]4 [of € ( euros)]5 on July 15, 2025.
Interest Payment Dates: January 15 and July 15 Record Dates: January 1 and July 1
1
For Notes issued July 25, 2020:
Rule 144A Note Common Code: 220638308 Rule 144A Note ISIN: XS2206383080
Regulation S Note Common Code: 220638286 Regulation S Note ISIN: XS2206382868
IAI Note Common Code: 201003032 IAI Note ISIN: XS2010030323
For Notes issued December 29, 2022:
Rule 144A Note Common Code: 257212297 Rule 144A Note ISIN: XS2572122971
Regulation S Note Common Code: 257212262 Regulation S Note ISIN: XS2572122625
2 Include in Global Notes.
3 Include in Global Notes
4 Include in Global Notes
5 Include in Definitive Notes
IN WITNESS HEREOF, the Issuer has caused this instrument to be duly executed.
| | |
DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture:
| | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
By: |
Authorized Signatory |
Dated:
[Reverse Side of Note]
9.000% Senior Secured Notes due 2025
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1.INTEREST. Diebold Nixdorf Dutch Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Issuer”), promises to pay interest on the principal amount of this Note at 9.000% per annum until but excluding maturity. The Issuer shall pay interest semi-annually in arrears on January 15 and July 15 of each year, or if any such day is not a Business Day, on the next succeeding Business Day (each, an “Interest Payment Date”). Interest on the Notes shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including [July 25, 2020]6[December 29, 2022]7; provided that the first Interest Payment Date shall be [January 15, 2021]8[January 15, 2023]9. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue principal and premium, if any, from time to time on demand at the interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Laws) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the interest rate on the Notes to the extent lawful. Interest shall be computed on the basis of a 360-day year comprised of twelve 30-day months.
2.METHOD OF PAYMENT. The Issuer shall pay interest on the Notes to the Persons who are registered holders of Notes at the close of business on January 1 or July 1 (whether or not a Business Day), as the case may be, immediately preceding the related Interest Payment Date, even if such Notes are canceled after such Record Date and on or before such Interest Payment Date, except as provided in Section 2.12 of the Indenture with respect to defaulted interest. Principal, premium, if any, and interest on the Notes shall be payable at the office or agency of the Issuer maintained for such purpose or, at the option of the Issuer, payment of interest and premium, if any, may be made by check mailed to the Holders at their respective addresses set forth in the Note Register; provided that all such payments with respect to Global Notes registered in the name of the Common Depositary or its nominee will be made by wire transfer of immediately available funds to the Common Depositary or its nominee.
3.PAYING AGENT AND REGISTRAR. Initially, Elavon Financial Services DAC shall act as Paying Agent, Transfer Agent and Registrar. The Issuer may change any Paying Agent, Transfer Agent or Registrar without notice to the Holders. The Issuer or any of its Subsidiaries may act in any such capacity.
4.INDENTURE. The Issuer issued the Notes[, which are Additional Notes,]10 under an Indenture, dated as of July 20, 2020 and amended and restated as of December 29, 2022 (as further amended or supplemented from time to time, the “Indenture”), among Diebold Nixdorf Dutch Holding B.V., Diebold Nixdorf, Incorporated, the Guarantors named therein, Elavon Financial Services DAC, as Paying Agent, Transfer Agent and Registrar, the Trustee and the Notes Collateral Agent. This
6 For Existing Notes
7 For Exchange Notes
8 For Existing Notes
9 For Exchange Notes
10 For Exchange Notes
Note is one of a duly authorized issue of notes of the Issuer designated as its 9.000% Senior Secured Notes due 2025. [The Issuer shall be entitled to issue Additional Notes pursuant to Section 2.01 and 4.09 of the Indenture.]11 The Notes and any Additional Notes issued under the Indenture shall be treated as a single class of securities under the Indenture. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of such terms. Any term used in this Note that is defined in the Indenture shall have the meaning assigned to it in the Indenture. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
5.REDEMPTION AND REPURCHASE. The Notes are subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
6.DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of €[2,000]12[100,000]13 and integral multiples of €1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents, and Holders shall be required to pay any taxes and fees required by law or permitted by the Indenture. The Issuer need not exchange or register the transfer of any Note or portion of a Note selected for redemption or tendered for repurchase in connection with a Change of Control Offer or Asset Disposition Offer, except for the unredeemed portion of any Note being redeemed or repurchased in part.
7.PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.
8.AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Note Guarantees or the Notes may be amended or supplemented as provided in the Indenture.
9.DEFAULTS AND REMEDIES. The Events of Default relating to the Notes are defined in Section 6.01 of the Indenture. Upon the occurrence of an Event of Default, the rights and obligations of the Issuer, the Guarantors, the Trustee, the Notes Collateral Agent and the Holders shall be as set forth in the applicable provisions of the Indenture.
10.AUTHENTICATION. This Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual, electronic or facsimile signature of the Trustee.
11.GOVERNING LAW. THIS NOTE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
12.CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF JURY TRIAL. EACH OF THE ISSUER AND THE GUARANTORS HEREBY IRREVOCABLY SUBMITS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TO THE NON- EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
11 For Existing Notes
12 For Exchange Notes
13 For Existing Notes
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR THE NOTE GUARANTEES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE ISSUER, THE GUARANTORS, THE TRUSTEE AND THE NOTES COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES, THE NOTE GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13.COMMON CODES AND ISIN NUMBERS. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused Common Codes and ISIN numbers to be printed on the Notes, and the Trustee may use Common Codes and ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
14.SECURITY. The Notes and the Note Guarantees will be secured by the Collateral on the terms and subject to the conditions set forth in the Indenture and the Collateral Documents. The Trustee and the Notes Collateral Agent, as the case may be, hold the Collateral in trust for the benefit of the Trustee and the Holders, in each case pursuant to the Collateral Documents and the Intercreditor Agreements. Each Holder, by accepting this Note, consents and agrees to the terms of the Collateral Documents and the Intercreditor Agreements as the same may be in effect or may be amended from time to time in accordance with their terms and the Indenture and authorizes and directs the Notes Collateral Agent to enter into the Collateral Documents and the Intercreditor Agreements, and to perform its obligations thereunder in accordance therewith.
15.INTERCREDITOR AGREEMENTS. Anything herein to the contrary notwithstanding, the liens and security interests securing the Obligations evidenced by this Note, the exercise of any right or remedy with respect thereto, and certain of the rights of the Holder hereof are subject to the provisions of the Intercreditor Agreements. In the event of any conflict between the terms of any Intercreditor Agreement and this Note, the terms of the applicable Intercreditor Agreement shall govern and control.
The Issuer shall furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Issuer at the following address:
c/o Diebold Nixdorf Dutch Holding B.V.
5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
This certificate relates to € principal amount of Notes held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned (check one box below):
has requested the Trustee by written order to deliver in exchange for its beneficial interest in a Global Note (or a portion thereof indicated above) held by the Common Depositary a Note or Notes in definitive, registered form of authorized denominations and an aggregate principal amount equal to its beneficial interest in such Global Note (or the portion thereof indicated above) in accordance with the Indenture; or
has requested the Trustee by written order to exchange or register the transfer of a Note or Notes.
In connection with any transfer of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)to the Issuer or subsidiary thereof; or
(2)to the Registrar for registration in the name of the Holder, without transfer; or
(3)pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or
(4)to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
(5)pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act (and if the transfer is being made prior to the expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter through Euroclear or Clearstream); or
(6)to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7)under the Securities Act) that has furnished to the Trustee a signed letter containing certain representations and agreements; or
(7)pursuant to Rule 144 under the Securities Act; or
(8)pursuant to another available exemption from registration under the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided,
however, that if box (5), (6), (7) or (8) is checked, the Issuer or the Trustee may require, prior to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Issuer or the Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
| | |
Your Signature |
Date: |
Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Issuer as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
NOTICE: To be executed by
an executive officer
Name: Title:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE14
The undersigned represents and warrants that either:
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Notes pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Note does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Notes.
Dated:
Your Signature
14 Include only for Regulation S Global Notes.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 4.15 or Section 4.16 of the Indenture, check the appropriate box below:
[ ] Section 4.15 [ ] Section 4.16
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 4.15 or Section 4.16 of the Indenture, state the amount you elect to have purchased:
€ (integral multiples of €1,000,
provided that the unpurchased portion must be in a minimum
principal amount of €[2,000]15[100,000]16)
Your Signature:
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
15 For Exchange Notes
16 For Existing Notes
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is € . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global Note, have been made:
| | | | | | | | | | | | | | |
Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase |
Signature of authorized signatory of Common, Depositary |
*This schedule should be included only if the Note is issued in global form.
EXHIBIT B
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
c/o Diebold Nixdorf Dutch Holding B.V. 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
Ladies and Gentlemen:
This certificate is delivered to request a transfer of €[ ] principal amount of the 9.000% Senior Secured Notes due 2025 (the “Notes”) of Diebold Nixdorf Dutch Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Issuer”).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows: Name:
Address: Taxpayer ID Number:
The undersigned represents and warrants to you that:
1.We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor” at least $250,000 principal amount of the Notes, and we are acquiring the Notes, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2.We understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes only in accordance with the Restricted Notes Legend (as such term is defined in the indenture under which the Notes were issued) on the Notes and any applicable securities laws of any state of the United States. If any resale or other transfer of the Notes is proposed to be made pursuant to
clause (e) of the Restricted Notes Legend, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Issuer and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Issuer and the Trustee reserve the right prior to the offer, sale or other transfer of the Notes with respect to applicable
transfers described in the Restricted Notes Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Issuer and the Trustee.
TRANSFEREE: ,
by:
EXHIBIT C
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this “Supplemental Indenture”), dated as of [ ] [ ], 20[ ], among Diebold Nixdorf Dutch Holding B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under Dutch law (the “Issuer”), Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), [ ] (the “Guaranteeing Subsidiary”), Elavon Financial Services DAC, as paying agent, transfer agent and registrar, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”) and GLAS AMERICAS LLC, as notes collateral agent (the “Notes Collateral Agent”).
W I T N E S S E T H
WHEREAS, each of the Issuer, the Company and the Subsidiary Guarantors (as defined in the Indenture referred to below) has heretofore executed and delivered to the Trustee and the Notes Collateral Agent an indenture dated as of July 20, 2025 and amended and restated on December [ ], 2022 (as may be further amended from time to time, the “Indenture”), providing for the issuance of 9.000% Senior Secured Notes due 2025 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiary shall execute and deliver to the Trustee and the Notes Collateral Agent a supplemental indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally Guarantee all of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein and under the Indenture; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee and the Notes Collateral Agent are authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant and agree for the equal and ratable benefit of the Holders as follows:
1.Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2.Guarantor. The Guaranteeing Subsidiary hereby agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including Article 12 thereof.
3.Governing Law. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY, AND WILL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
4.Counterparts. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
5.Headings. The headings of the Sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part of this Supplemental Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
6.Guarantee Limitations Language. [To be inserted if applicable based on
jurisdiction].
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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DIEBOLD NIXDORF DUTCH HOLDING B.V. |
By: |
| Name: |
| Title: |
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
| | |
[NAME OF GUARANTEEING SUBSIDIARY] |
By: |
| Name: |
| Title: |
| | |
ELAVON FINANCIAL SERVICES, DAC |
as Paying Agent, Transfer Agent and Registrar |
By: |
| Name: |
| Title: |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee |
By: |
| Name: |
| Title: |
GLAS AMERICAS LLC, as Notes Collateral Agent |
By: |
| Name: |
| Title: |
Exhibit 10.1
Diebold Nixdorf, Incorporated AND
U.S. Bank Trust Company, National Association, as Units Trustee, as Trustee and Paying Agent under the Indenture referred to herein, and as Warrant Agent under the Warrant Agreement referred to herein
UNIT AGREEMENT
Dated as of December 29, 2022
TABLE OF CONTENTS
Page
Exhibit A Form of Unit
Exhibit B Termination Event Notice
Exhibit C-1 Prohibited Event Unit Split Date Notice Exhibit C-2 Indenture Default Notice
ii
UNIT AGREEMENT, dated as of December 29, 2022, by and between Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), and U.S. Bank Trust Company, National Association, acting solely as Units Trustee under this Agreement (in its capacity as Units Trustee, the “Units Trustee,” except to the extent that this Agreement specifically states that the Units Trustee is acting in another capacity), as trustee under the Indenture described below (in its capacity as trustee under the Indenture, the “Trustee”), and as warrant agent under the Warrant Agreement described below (in its capacity as warrant agent under the Warrant Agreement, the “Warrant Agent”).
WHEREAS, the Company has entered into a senior secured indenture dated as of December 29, 2022 among the Company, the guarantors party thereto, the Trustee and GLAS Americas LLC, as collateral agent (as amended or supplemented, the “Indenture”);
WHEREAS, the Company has duly authorized the issuance, from time to time, pursuant to the Indenture, of senior secured notes (the “Notes”);
WHEREAS, the Company has entered into a warrant agreement, dated as of December 29, 2022, between the Company and the Warrant Agent (the “Warrant Agreement”);
WHEREAS, the Company has duly authorized the issuance, from time to time, pursuant to the Warrant Agreement, of warrants (the “Warrants”) to purchase common shares, par value $1.25 per share, of the Company (“Common Shares”);
WHEREAS, the Company desires to provide for the issuance, pursuant to this Agreement, of units (the “Units”) consisting of Outstanding Notes and Outstanding Warrants;
NOW, THEREFORE, in consideration of the promises and the receipt of the Units by the holders thereof in exchange for such holders’ existing 8.50% Senior Notes due 2024 (the “Existing Notes”) pursuant to an unregistered exchange offer closing on or about the date hereof (the “Initial Exchange Offer”), the Company, the Units Trustee, the Warrant Agent and the Trustee mutually covenant and agree as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (i) the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular; (ii) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with
generally accepted accounting principles in the United States in effect at the time of any computation; and (iii) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section or other subdivision.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”, with respect to any specified Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Agent Member” has the meaning stated in Section 2.01(d)(ii) of this Agreement.
“Agreement” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more agreements supplemental hereto entered into pursuant to the applicable provisions hereof.
“Attached Notes” has the meaning set forth in the Indenture. “Attached Warrants” has the meaning set forth in the Warrant
Agreement.
“Board of Directors” means the board of directors of the Company or any other committee duly authorized to act on its behalf with respect to this Agreement.
“Board Resolution” means one or more resolutions, certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted or consented to by the Board of Directors and to be in full force and effect on the date of such certification and delivered to the Units Trustee.
“Business Day” means each day that is not a Saturday, Sunday or other day on which banking institutions in New York, New York or North Canton, Ohio are authorized or required by law to close.
“Common Shares” has the meaning stated in the recitals. “Company” means the Person named as the “Company” in the first
paragraph of this Agreement.
“Corporate Trust Office” means the office of the Units Trustee at which at any particular time its corporate trust business shall be principally administered,
which office at the date hereof is located at 1350 Euclid Avenue, Suite 1100, Cleveland, Ohio 44115.
“Debt Security Register” with respect to any Notes constituting a part of the Units means the Note Register (as such term is defined in the Indenture) maintained by the Registrar (as such term is defined in the Indenture) pursuant to the Indenture.
“Definitive Securities” means any Security in definitive form. “Definitive Unit” means any Unit in definitive form to the extent
permitted by Sections 2.11 or 2.12.
“Definitive Units Legend” has the meaning stated in Section 2.08(e) of this Agreement.
“Depositary” means DTC, or any successor, as the Holder of any Global
Units.
“Distribution Compliance Period” means, with respect to any Unit, the
period of six months beginning on and including the later of (a) the day on which such Unit is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S and (b) the date of issuance with respect to such Unit or any predecessor of such Unit.
“DTC” means The Depository Trust Company or its nominee.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Existing Notes” has the meaning stated in the recitals. “Global Note” means a global Note in registered form.
“Global Unit” means any Unit that comprises one or more Initial Warrant Certificates and/or Attached Notes and is represented by a Global Unit Certificate. The Rule 144A Global Unit, the IAI Global Unit, the Regulation S Global Unit and any Unrestricted Global Unit are each referred to herein as a “Global Unit” and are collectively referred to herein as “Global Units.”
“Global Unit Certificate” means a global Unit Certificate in registered
form.
“Global Warrant” means a global Warrant in registered form.
“Holder” means the Person in whose name a Registered Security or the Registered Securities constituting a part of a Registered Unit are registered on the relevant Security Register or Unit Register, as applicable.
“IAI” means an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.
“IAI Global Unit” has the meaning stated in Section 2.01(c) of this Agreement.
“Indenture” has the meaning specified in the recitals.
“Initial Exchange Offer” has the meaning stated in the recitals.
“Initial Warrant Certificates” has the meaning set forth in the Warrant Agreement.
“Issuer Order” means a written order signed in the name of the Company by an Officer and delivered to the Units Trustee, Trustee or Warrant Agent, as applicable. For the avoidance of doubt, an Authentication Order issued under the Indenture or a written order issued under the Warrant Agreement is considered an Issuer Order.
“Key Definitions” has the meaning stated in Section 6.01(b) in this Agreement.
“Key Provisions” has the meaning stated in Section 6.01(b) in this Agreement.
“Maximum Number of Warrant Shares” means, initially, 15,813,847 Common Shares; provided that the Maximum Number of Warrant Shares shall be subject to adjustment as follows: (i) if a Termination Event with respect to any portion of the principal amount of any Units occurs prior to April 1, 2024, the Maximum Number of Warrant Shares will be reduced proportionately to reflect the cancellation of the Warrants attached to such aggregate principal amount of Units; (ii) if a Unit Split Date occurs with respect to a portion but not all of the aggregate principal amount of Units, the Maximum Number of Warrant Shares will be proportionately reduced by a number equal to the product of (x) the sum of (A) the number of Warrants separated as a result of the applicable Unit Split Date and (B) the number of Warrants cancelled on account of any cash paid in lieu of delivery of any fractional Warrants as provided in Section 3.08(b) of the Warrant Agreement, and (y) the then applicable Warrant Share Number (as defined in the Warrant Agreement); and (iii) the Maximum Number of Warrant Shares shall also be adjusted at the same time, and in the same manner, as the Warrant Share Number (as defined in the Warrant Agreement) is adjusted in
respect of certain anti-dilution adjustments, dividends and other corporate events pursuant to Article IV of the Warrant Agreement.
“Notes” has the meaning stated in the recitals and shall refer to (i) any Notes issued under the Indenture on the date hereof as part of Units issued under this Agreement on the date hereof in connection with the Initial Exchange Offer,
(ii) any Notes issued under the Indenture after the date of this Agreement as part of Units issued under this Agreement in connection with the SEC Registered Exchange Offer, (iii) the increase in aggregate principal amount of Notes referenced in (i) and (ii) above reflecting the payment of PIK Interest pursuant to the terms of the Indenture (the “PIK Interest Principal Amount Increase”) and
(iv) any Notes issued under the Indenture after the date hereof in exchange for or substitution of any Notes described above. For purposes of this Agreement, Notes have the same meaning as Attached Notes in the Indenture.
“Officer” means the Chairman of the Board of Directors, Chief Executive Officer, the President or a Co-President, the Chief Financial Officer, any Executive Vice-President, Senior Vice President or Vice President, the Chief Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer, the Secretary of the Company or any other person authorized by the Board of Directors.
“Officer’s Certificate” means a certificate signed by an Officer of the Company and delivered to the Units Trustee.
“Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall otherwise be satisfactory to the Units Trustee.
“Outstanding,” with respect to any Unit, Note or Warrant means, as of the date of determination, all Units, Notes or Warrants, as the case may be, evidenced by Units theretofore authenticated, countersigned, executed and delivered under this Agreement, except:
(A)Units, Notes and Warrants theretofore deemed cancelled, cancelled by the Units Trustee, Warrant Agent or Trustee, as the case may be, or delivered to the Units Trustee, Warrant Agent or Trustee, as the case may be, for cancellation, in each case pursuant to the provisions of this Agreement, the Warrant Agreement or the Indenture, as the case may be; and
(B)Units, Notes and Warrants evidenced by Unit Certificates in exchange for or in lieu of which other Unit Certificates have been authenticated, countersigned, executed and delivered pursuant to this Agreement, other than any such Units, Notes or Warrants, as the case may be, evidenced by a Unit Certificate in respect of which there shall have
been presented to the Units Trustee proof satisfactory to it that such Unit Certificate is held by a bona fide purchaser in whose hands the Units, Notes and Warrants, as the case may be, evidenced by such Unit Certificate are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Units, Notes or Warrants, as the case may be, have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Units, Notes or Warrants owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Units Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice, consent or waiver, only Units, Notes and Warrants which the Units Trustee knows to be so owned shall be so disregarded. Upon request of the Units Trustee, the Company shall furnish to the Units Trustee promptly an Officer’s Certificate listing and identifying all Units, if any, owned or held by or for the account of or known by the Company to be owned or held by or for the account of the Company or any Affiliate of the Company. Units, Notes and Warrants that are so owned but that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Units Trustee the pledgee’s right so to act
with respect to such Units, Notes and Warrants and that the pledgee is not the Company or any Affiliate of the Company.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“PIK Interest” has the meaning set forth in the Indenture.
“PIK Interest Principal Amount Increase” has the meaning stated in the definition of “Notes” in this Section 1.01.
“Prohibited Event” means, with respect to any portion of the principal amount of any Unit, any repayment, repurchase, redemption or other retiring of any portion of the principal amount of Notes forming a part thereof prior to the Unit Split Date for such Unit or portion thereof (other than in connection with a Termination Event).
“Prohibited Event Unit Split Date” means a Unit Split Date occurring as a result of a Prohibited Event.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Registered Note” means any Note issued under the Indenture registered
on the Debt Security Register.
“Registered Security” means any of a Registered Note or Registered Warrant.
“Registered Unit” means any Unit in registered form consisting of Registered Securities registered on the Unit Register.
“Registered Warrant” means any Warrant in registered form registered on the Warrant Register.
“Regulation S” means Regulation S promulgated under the Securities
Act.
“Regulation S Global Unit” has the meaning stated in Section 2.01(c) of
this Agreement.
“Responsible Officer” when used with respect to the Units Trustee, shall mean an officer of the Units Trustee in the Corporate Trust Office, having direct responsibility for the administration of this Agreement, and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Units Legend” has the meaning stated in Section 2.08(e) of this Agreement.
“Rule 144” means Rule 144 promulgated under the Securities Act. “Rule 144A” means Rule 144A promulgated under the Securities Act. “Rule 144A Global Units” has the meaning stated in Section 2.01(c) of
this Agreement.
“SEC” means the Securities and Exchange Commission.
“SEC Registered Exchange Offer” means that certain proposed exchange offer to be registered with the SEC that is expected to be consummated by the Company prior to June 30, 2023, pursuant to which holders of the Existing Notes who did not or who were not eligible to participate in the Initial Exchange Offer may tender and exchange their Existing Notes for Units.
“Security” means any of a Note or Warrant.
“Security Register” means either a Debt Security Register or a Warrant Register.
“Termination Event” means, with respect to the applicable principal amount Notes (and the corresponding aggregate principal amount of Units), any (i)
Permitted Equity Issuance Prepayment (as defined in the Indenture), or (ii) refinancing (as defined in the Indenture) in connection with a Change of Control (as defined in the Indenture), in each case prior to April 1, 2024.
“Termination Event Notice” means notice provided by the Notes Trustee of a Termination Event, in the form set forth in Exhibit B.
“Trading Day” has the meaning set forth in the Warrant Agreement. “Transfer Restricted Unit” means any Unit that bears or is required to
bear the Restricted Units Legend.
“Trustee”, with respect to Notes means the Person acting as Trustee under the Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of such Indenture, and thereafter “Trustee” shall mean such successor Trustee.
“Unit” has the meaning stated in the recitals. The aggregate principal amount of Outstanding Units at any time prior to a Unit Split Date shall equal the aggregate principal amount of Outstanding Notes as provided in Section 2.04.
“Unit Certificate” means a certificate evidencing the respective rights and obligations of the Company and a Holder with respect to the aggregate principal amount of Units specified on such certificate.
“Unit Split Date” means, with respect to any Unit, the date on which such Unit is required to be separated into its constituent Securities in accordance with Article III.
“Unit Warrant Number” means, for any principal amount of Notes forming a part of any Unit (including any PIK Interest, if applicable), the number of Warrants exercisable for an aggregate number of Common Shares equal to the product of (a) (i) such principal amount of Notes part of all Outstanding Units (including any PIK Interest, if applicable) divided by (ii) the aggregate principal amount of Outstanding Notes part of all Outstanding Units (including any PIK Interest, if applicable), including any additional Notes issued as part of Units in the SEC Registered Exchange Offer, and (b) the Maximum Number of Warrant Shares, in each case, as of any time of determination. For the avoidance of doubt,
(i) the Unit Warrant Number as of the date of this Agreement shall be reduced if and to the extent the SEC Registered Exchange Offer is consummated to give effect to the issuance of Units and Notes in such transaction and (ii) the number of Common Shares for which any Warrants shall be exercisable for purposes of this definition shall be determined by reference to the Warrant Share Number (as defined in the Warrant Agreement), without taking into account any reduction in
the number of Common Shares deliverable to a Warrant holder on account of the payment of the Warrant exercise price via net settlement as provided in the Warrant Agreement. As provided in Sections 2.04, 2.08(d)(ii) and 2.08(d)(xi), promptly following an event that increases or decreases the aggregate principal amount of Outstanding Units, the Company shall calculate and transmit to the Units Trustee the Unit Warrant Number in respect of $1,000 aggregate principal amount of Notes.
“Units Trustee” means the Person named as the “Units Trustee” in the first paragraph of this Agreement until a successor Units Trustee shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Units Trustee” shall mean such successor Person.
“U.S. person” means a “U.S. person” as defined in Regulation S. “Unrestricted Global Unit” means any Unit in global form that does not
bear or is not required to bear the Restricted Units Legend.
“Warrant Agent” means the Person named as the “Warrant Agent” in the first paragraph of this Agreement until a successor Warrant Agent shall have become such pursuant to the applicable provisions of this Agreement, and thereafter “Warrant Agent” shall mean such successor Person.
“Warrant Agreement” has the meaning stated in the recitals. “Warrant Register” with respect to any Warrants constituting a part of
the Units means the warrant register of the Company maintained by the Warrant Agent pursuant to the Warrant Agreement.
“Warrant” has the meaning stated in the recitals and shall refer to (i) any Warrant issued under the Warrant Agreement on the date hereof as part of Units issued under this Agreement on the date hereof in connection with the Initial Exchange Offer, and (ii) any Warrant issued under the Warrant Agreement after the date of this Agreement in exchange for or substitution of any Warrant described in clause (i) above (including, without limitation, upon any reallocation of any Warrants issued as part of Units under this Agreement in connection with the Initial Exchange Offer as part of Units issued under this Agreement in connection with the SEC Registered Exchange Offer). For purposes of this Agreement, Warrants shall have the same meaning as Attached Warrants in the Warrant Agreement.
ARTICLE 2 UNITS
Section 2.01. Forms Generally. (a) The Units shall be substantially in the form of Exhibit A or in such form (consistent with this Agreement) as shall be established by or pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent established pursuant to rather than set forth in a Board Resolution, an Officer’s Certificate detailing such establishment). The Unit Certificates may have imprinted or otherwise reproduced thereon such letters, numbers or other marks of identification or designation and such legends or endorsements as the officers of the Company executing the Securities constituting a part thereof may approve (execution thereof to be conclusive evidence of such approval) and that are consistent with the provisions of this Agreement, or as may be required to comply with any applicable law, rule or regulation, or with any rule or regulation of any self-regulatory organization on which the Units may be listed or quoted or of any securities depository or to conform to general usage.
(a)The Unit Certificates shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Unit Certificates, as evidenced by their execution of the Securities constituting a part of the Units evidenced by such Unit Certificates.
(b)Global Units. Except as provided in Sections 2.11 or 2.12, Units, including Units issued upon any transfer or exchange thereof, shall be issued in the form of one or more Global Unit Certificates, which shall be deposited on behalf of the Company with the Depositary (or, at the direction of the Depositary, with the Units Trustee or such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and authenticated by the Units Trustee as hereinafter provided.
Upon the execution and delivery of this Agreement, the initial Global Unit Certificates shall be in the form of (1) one or more Global Unit Certificates representing Units offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act (collectively, the “IAI Global Unit”), (2) one or more Global Unit Certificates representing Units offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S (collectively, the “Regulation S Global Unit”), and (3) one or more Global Unit Certificates representing Units offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act (collectively, the “Rule 144A Global Unit”). From time to time after the date hereof, the Global Units may be represented by one or more Unrestricted Global Units, as provided in Section 2.07(a)(ii).
(d)Book-Entry Provisions. This Section 2.01(d) shall apply only to a Global Unit deposited with, at the direction of or on behalf of the Depositary.
(i)The Company shall execute and the Units Trustee shall, in accordance with Section 2.07, authenticate and countersign, either by manual or facsimile or other electronically transmitted signature, and deliver one or more Global Units that (A) shall be registered in the name of the Depositary or the nominee of the Depositary and (B) shall be delivered by the Units Trustee to the Depositary or pursuant to the Depositary’s instructions or held by the Units Trustee. Each Global Unit shall be dated the date of its countersignature by the Units Trustee.
(ii)The securities brokers and dealers, banks and trust companies, clearing organizations and other similar organizations that are participants in the Depositary’s system (the “Agent Members”) shall have no rights under this Agreement with respect to any Global Unit held on their behalf by the Depositary or by the Units Trustee as the custodian of the Depositary or under such Global Unit except to the extent set forth herein or in a Unit Certificate, and the Depositary may be treated by the Company, the Units Trustee and any agent of the Company or the Units Trustee as the absolute owner of such Global Unit for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Units Trustee or any agent of the Company or the Units Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (B) impair, as between the Depositary and the Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Unit. The rights of beneficial owners in a Global Unit shall be exercised through the Depositary subject to the applicable procedures of the Depositary, except to the extent set forth herein or in a Unit Certificate.
Section 2.02. Form of Certificate of Authentication and Countersignature. The form of Trustee’s certificate of authentication of the Notes and the form of the Warrant Agent’s countersignature of the Warrants, each constituting a part of the Units, shall be substantially in such form as set forth in the Indenture or the Warrant Agreement, as applicable.
Section 2.03. Terms.
(a)The Units will be issued in one series, denominated as “DNU- ”.
(b)The aggregate principal amount represented by the Units that may be authenticated, countersigned and delivered under this Agreement is limited to the aggregate principal amount of the Outstanding Notes (including any Notes
issued in connection with the SEC Registered Exchange Offer) that comprise the Units (including any PIK Interest issued in respect of such Outstanding Notes) (disregarding any Units authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Units pursuant to Sections 2.11 or 2.12).
(c)All Units shall be substantially identical, other than differences in issue date, differences required in order to make Units fungible for U.S. federal tax purposes, differences required to consummate the SEC Registered Exchange Offer and, if applicable, restrictions on transfer applicable thereto.
Section 2.04. PIK Interest Principal Amount Increase. In the event of a PIK Interest Principal Amount Increase with respect to the Outstanding Notes, the principal amount of the Outstanding Units shall be increased by an amount equal to the PIK Interest Principal Amount Increase and the Units Trustee shall cause Schedule A of such Global Unit Certificates to be endorsed to reflect such increase. Notwithstanding anything in this Agreement to the contrary, no Issuer Order, Officer’s Certificate or any other notification is required for Units Trustee to reflect such increase. Following a PIK Interest Principal Amount Increase, the Units Trustee shall, consistent with the Company’s calculations of the Unit Warrant Number per $1,000 principal amount of the Notes pursuant to Section 2.08(d)(xi), reflect in its registry a decrease in the Unit Warrant Number per
$1,000 principal amount of the Notes. For the avoidance of doubt, unless the context otherwise requires, references herein to the principal amount of any Notes or Units shall be deemed to include PIK Interest.
Section 2.05. Denominations. Units shall be issued only in minimum denominations of $2,000 principal amount and integral multiples of $1.00 principal amount in excess thereof, with such amount representing the aggregate principal amount of Notes underlying such Units (as set forth in more detail in Section 2.06).
Section 2.06. Rights and Obligations Evidenced by the Units. Units shall evidence the ownership by the Holder thereof of (a) the aggregate principal amount of Notes, if any, specified in Schedule A attached to any Unit Certificate representing Global Units (including any PIK Interest) and (b) the number of Warrants, if any, representing the applicable Unit Warrant Number corresponding to such aggregate principal amount of Notes, in each case, subject to adjustments made to Schedule A pursuant to Sections 2.04 or 3.02.
Section 2.07. Execution, Authentication, Delivery and Dating.
(a)Unit Certificates.
(iii)Upon the execution and delivery of this Agreement, and from time to time thereafter, the Company may deliver, subject to any
limitation on the aggregate principal amount of Notes or the number of Warrants represented thereby, an unlimited principal amount of Unit Certificates (including the Securities executed by the Company constituting the Units evidenced by such Unit Certificates) to the Units Trustee for authentication and countersignature (and the Securities constituting the Units evidenced by such Unit Certificates to the Trustee and Warrant Agent, as the case may be, for authentication and countersignature), together with its Issuer Orders for authentication and countersignature of such Units and Securities, and the Units Trustee in accordance with this Agreement, the Indenture, the Warrant Agreement and the applicable Issuer Order shall authenticate the Units evidenced by such Unit Certificate, the Trustee in accordance with the Indenture and the applicable Issuer Order shall authenticate the Notes constituting a part of the Units evidenced by such Unit Certificates, and the Warrant Agent in accordance with the Warrant Agreement and the applicable Issuer Order shall countersign the Warrants constituting a part of the Units evidenced by such Unit Certificates, and the Units Trustee shall deliver such Unit Certificates in accordance with the applicable Issuer Order. Any Notes constituting a part of the Units shall be executed on behalf of the Company in accordance with the terms of the Indenture. Any Warrants constituting a part of the Units shall be executed on behalf of the Company in accordance with the terms of the Warrant Agreement.
(iv)Units authenticated and delivered in connection with the SEC Registered Exchange Offer after the date of this Agreement will be evidenced by one or more Unrestricted Global Units and may be freely transferable without restrictions.
(b)Initial Warrant Certificates and Attached Notes.
(v)Upon the execution and delivery of this Agreement, the Company shall issue and deposit with the Units Trustee, as custodian for the beneficial owners, Initial Warrant Certificates duly executed by the Company and countersigned by the Warrant Agent as provided in the Warrant Agreement, in the form of (i) one or more Initial Warrant Certificates representing Warrants offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act, (ii) one or more Initial Warrant Certificates representing Warrants offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S, and (iii) one or more Initial Warrant Certificates representing beneficial interests in Warrants offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act. Upon the execution and delivery of this Agreement, the Company shall issue and deposit with the Units Trustee, as custodian for the beneficial owners, Attached Notes duly executed by the Company and authenticated by the Trustee as provided in the
Indenture, in the form of (i) one or more Attached Notes representing Notes offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act, (ii) one or more Attached Notes representing Notes offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S, and (iii) one or more Attached Notes representing beneficial interests in Notes offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act.
(vi)Upon the consummation of the SEC Registered Exchange Offer, the Company shall deposit with the Units Trustee, as custodian for the beneficial owners, Initial Warrant Certificates duly executed by the Company and countersigned by the Warrant Agent as provided in the Warrant Agreement, representing Warrants that are freely transferable for
U.S. securities law purposes, initially including Attached Warrants forming part of Units offered and sold by the Company in the SEC Registered Exchange Offer, with Annex A of such Initial Warrant Certificates initially reflecting their representation of a number of Warrants equal to the Unit Warrant Number corresponding to the aggregate principal amount of Units issued in the SEC Registered Exchange Offer. At such time, the Units Trustee shall instruct the Warrant Agent to reflect on its registry, and on Annex A to the relevant Initial Warrant Certificates, corresponding decreases in the number of Attached Warrants represented by the other Initial Warrant Certificates based on the Unit Warrant Number represented by the principal amount of Units (including any PIK Interest if applicable) having the relevant transfer restricted status for each such Initial Warrant Certificate after giving effect to the SEC Registered Exchange Offer, with no delivery of additional instruments, certifications or legal opinions required under this Agreement or the Unit Certificates. The Units Trustee shall rely on the Company’s calculation of the Unit Warrant Number per $1,000 aggregate principal amount of Notes transmitted to the Units Trustee pursuant to Section 2.08(d)(xi) in connection with the SEC Registered Exchange Offer to calculate the Unit Warrant Number for the aggregate principal amount of Notes as part of such Units. Upon the consummation of the SEC Registered Exchange Offer, the Company shall issue and deposit with the Trustee, as custodian for the beneficial owners, Notes duly executed by the Company and authenticated by the Trustee as provided in the Indenture, in the form of one or more Attached Notes representing unrestricted Notes, initially including Notes offered and sold by the Company in the SEC Registered Exchange Offer.
Section 2.08. Registration, Transfer and Exchange of the Units.
(a)The Units Trustee shall keep at its Corporate Trust Office a register (the register maintained in such office being herein referred to as the “Unit
Register”) in which, subject to such reasonable regulations as it may prescribe, the Units Trustee shall provide for the registration of the Units.
(b)The Holder of any Global Unit will be the Depositary or a nominee of the Depositary in whose name such Global Unit is registered. The Unit holdings of Agent Members will be recorded on the books of the Depositary. The beneficial interests in any Global Unit held by customers of Agent Members will be reflected on the books and records of such Agent Members, and neither the Units Trustee, the Company nor the Depositary shall be responsible for recording such beneficial interests or their exchange exercise, cancellation of transfer.
(c)Subject to compliance with applicable securities laws and the requirements set forth in this Agreement, each Unit Certificate and all rights thereunder are transferable, in whole or in part, upon the books of the Company (or an agent duly appointed by the Company) by the Holder thereof in person or by duly authorized attorney, and one or more new Unit Certificates shall be made and delivered by the Company, of the same tenor and date as the applicable Unit Certificate so delivered but registered in the name of one or more transferees, upon surrender of such Unit Certificate, duly endorsed, to the Units Trustee. All expenses and other charges payable in connection with the preparation, execution and delivery of the new Unit Certificate pursuant to this Section 2.08(c) shall be paid by the Company, except the Holder of the old Unit Certificate surrendered for transfer shall pay to the Company a sum sufficient to cover any documentary, stamp or similar issue or transfer tax due because the name of the Holder of the new Unit Certificate issued upon such transfer is different from the name of the Holder of the old Unit Certificate surrendered for transfer.
(d)Transfer and Exchange of Global Units; Restrictions on Transfer of Global Units.
(vii)In the case of a Unit Certificate that is a Global Unit, then so long as the Global Unit is registered in the name of the Depositary, (a) the holders of beneficial interests in the Units evidenced thereby shall have no rights under the Unit Certificate with respect to such Global Unit held on their behalf by the Depositary or the Units Trustee as custodian for the depositary, and (b) the Depositary may be treated by the Company, the Units Trustee and any agent of the Company or the Units Trustee as the absolute owner of such Global Unit for all purposes whatsoever, except, in each case, to the extent set forth herein. Accordingly, any such owner’s beneficial interest in the Global Unit will be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or the Agent Members, and neither the Company nor the Units Trustee shall have any responsibility with respect to such records maintained by the Depositary or the Agent Members. Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Units Trustee
or any agent of the Company or the Units Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary in respect of the Units or their constituent Securities or (ii) impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Unit. Except as otherwise may be provided in this Agreement, the rights of beneficial owners in a Global Unit shall be exercised through the Depositary subject to the applicable procedures of the Depositary. Any holder of any Global Unit shall, by acceptance of such Global Unit, agree that (x) ownership of a beneficial interest in the Units represented thereby shall be required to be reflected in book-entry form and (y) the transfer and exchange of Global Units or beneficial interests therein shall be effected through the book-entry system maintained by the Depositary, in accordance with this Agreement and the Unit Certificates and the procedures of the Depositary therefor.
(viii)If the proposed transfer is a transfer of a beneficial interest in one Global Unit to a beneficial interest in another Global Unit, subject to compliance with the applicable provisions of this Agreement, the Units Trustee shall reflect on its registry the date and an increase in the amount of the Global Unit to which such interest is being transferred in an amount equal to the amount of the interest to be so transferred, and the Units Trustee shall reflect on its registry the date and a corresponding decrease in the amount of the Global Unit from which such interest is being transferred. In connection with any such transfer, the Units Trustee shall direct the Warrant Agent and the Trustee to reflect on their respective registries, as applicable (A) the corresponding transfer of a beneficial interest in a number of Warrants equal to the Unit Warrant Number represented by the principal amount of such Units (including any PIK Interest, if applicable) so transferred and (B) the corresponding transfer of a beneficial interest in an aggregate principal amount of Notes equal to the aggregate principal amount of such Units (including any PIK Interest, if applicable) so transferred, in each case having the same transfer restricted status as the relevant Units in the manner contemplated by this Section
2.08. The respective registries shall reflect the date and the amount of the increase in the corresponding Warrants and Notes referenced above forming part of such Units to which such interest is being transferred and shall reflect the date and the amount of the decrease in the corresponding Warrants and Notes forming part of such Units from which such interests are being transferred. The Units Trustee shall rely on the Company’s most recent calculation of the Unit Warrant Number per $1,000 aggregate principal amount of Notes transmitted to the Units Trustee pursuant to Section 2.08(d)(xi) to calculate the Unit Warrant Number for the aggregate principal amount of Notes so transferred as part of such Units.
(ix)Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 2.11), a Global Unit may only be transferred as a whole, and not in part, and only by (A) the Depositary, to a nominee of the Depositary, (B) a nominee of the Depositary, to the Depositary or another nominee of the Depositary, or (C) the Depositary or any such nominee to a successor Depositary or its nominee.
(x)In the event that a Global Unit is exchanged for Definitive Units pursuant to Section 2.11, such Units may be exchanged only in accordance with the provisions of this Section 2.08 and Section 2.11 and such other procedures as may from time to time be adopted by the Company that are not inconsistent with the terms of this Agreement or of any Unit Certificate.
(xi)Transfers by an owner of a beneficial interest in a Rule 144A Global Unit or an IAI Global Unit to a transferee who takes delivery of such interest through another Transfer Restricted Unit shall be made in accordance with the applicable procedures of the Depositary and the Restricted Units Legend and only upon receipt by the Units Trustee of a written certification from the transferor in the form attached as Annex 1 to the Unit Certificate for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Unit or a Rule 144A Global Unit for an interest in an IAI Global Unit, the transferee must furnish a signed letter substantially in the form attached as Annex 2 to the Unit Certificate to the Units Trustee.
(xii)During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Unit may only be sold, pledged or transferred in accordance with the applicable procedures of the Depositary, the Restricted Units Legend on such Regulation S Global Unit and any applicable securities laws of any state of the U.S. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Unit to a transferee who takes delivery of such interest through a Rule 144A Global Unit or an IAI Global Unit shall be made only in accordance with the applicable procedures of the Depositary and the Restricted Units Legend and upon receipt by the Units Trustee of a written certification from the transferor of the beneficial interest in the form attached as Annex 1 to the Unit Certificate for exchange or registration of transfers. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period. Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S
Global Unit shall be transferable in accordance with applicable law and the other terms of this Agreement.
(xiii)Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Unit may be exchanged for beneficial interests in an Unrestricted Global Unit upon certification in the form attached as Annex 1 to the Unit Certificate for an exchange from a Regulation S Global Unit to an Unrestricted Global Unit.
(xiv)Beneficial interests in a Transfer Restricted Unit that is a Rule 144A Global Unit or an IAI Global Unit may be exchanged for beneficial interests in an Unrestricted Global Unit if the Holder certifies in writing to the Units Trustee that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth in Annex 1 attached to the Unit Certificate) and/or upon delivery of such legal opinions, certifications and other information as the Company or the Units Trustee may reasonably request.
(xv)If no Unrestricted Global Unit is Outstanding at the time of a transfer contemplated by the preceding clauses (vii) and (viii), the Company shall issue and the Units Trustee shall countersign, upon a written order for countersignature of such Unrestricted Global Unit, a new Unrestricted Global Unit in the appropriate principal amount.
(xvi)The Company shall promptly notify the Units Trustee in writing upon the occurrence of the Resale Restriction Termination Date.
(xvii)Promptly following the consummation of the SEC Registered Exchange Offer, a PIK Interest Principal Amount Increase as provided in Section 2.04, an adjustment to the Maximum Number of Warrant Shares or such other event as may cause a change in the Unit Warrant Number, the Company shall transmit to the Units Trustee in writing the calculation, as of such date of determination, of the applicable Unit Warrant Number per $1,000 principal amount of Notes (calculated to the nearest 1/1000 of a Warrant). The Company shall make these calculations in good faith and in a commercially reasonable manner and absent manifest error, such calculations shall be final and binding on the Holders, the owners of a beneficial interest in the applicable Units, the Units Trustee and the Warrant Agent.
(e)Restricted Units Legends. Except as permitted by Section 2.08(d), and Section 2.11, each Unit Certificate evidencing the Global Units and the Definitive Units (and all Units issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term
in the legend being defined as such for purposes of the legend only) (“Restricted Units Legend”):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF UNITS WITH A RULE 144A OR IAI CUSIP: [ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT][IN THE CASE OF UNITS WITH A REGULATION S CUSIP: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE UNITS TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF UNITS WITH A REGULATION S CUSIP: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS FORMING PART OF THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE
OR ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES (A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.
Each Definitive Unit that is a Transfer Restricted Unit shall bear the following additional legend (“Definitive Units Legend”):
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE UNITS TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE UNITS TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
(f)Obligations with respect to transfers and exchanges of Units.
(xviii)To permit registrations of transfers and exchanges, the Company shall execute and the Units Trustee shall, upon the relevant Holder’s delivery to the Units Trustee of the applicable Unit Certificate to be transferred in whole or in part and satisfaction of the other requirements for such transfer as set forth herein, countersign, either by manual or facsimile or other electronically transmitted signature, new Global Units and Definitive Units as required pursuant to the provisions of Section 2.07 and this Section 2.08. In addition, a transferor of a Global Unit or a Definitive Unit shall deliver to the Units Trustee a written instruction of transfer in the form attached to the Unit Certificate as Annex 1, duly executed by the Holder thereof or by its attorney, duly authorized in writing. Additionally, prior to registration of any transfer or exchange of a Unit, the requirements for the Unit issued upon such transfer or exchange to be issued in a name other than the Holder shall be met. Such requirements include, inter alia, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association (at a guarantee level reasonably acceptable to the Company’s transfer agent), and any other reasonable evidence of authority that may be required by the Units Trustee. Upon satisfaction of the conditions in this clause (i), the Units
Trustee shall, in accordance with such instructions, register the transfer or exchange of the relevant Global Unit or Definitive Unit.
(xix)No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment from a Holder of a sum sufficient to cover any transfer tax, assessments or similar governmental charge payable in connection therewith as set forth in Section 2.08(c). The Units Trustee shall have no duty or obligation pursuant to any Section of this Agreement requiring the payment of taxes, assessments, and/or governmental charges, unless and until the Units Trustee is satisfied that all such taxes, assessments, and/or governmental charges have been paid.
(xx)Each Unit Certificate shall be exchangeable, upon the surrender thereof by the Holder to the Units Trustee, for a new Unit Certificate or Unit Certificates of like tenor and representing the same aggregate principal amount of Units.
(xxi)All Units issued upon any transfer or exchange pursuant to the terms of this Agreement shall be the valid obligations of the Company, entitled to the same benefits under this Agreement as the Units surrendered upon such transfer or exchange.
(g)No obligation of the Units Trustee.
(xxii)The Units Trustee shall have no responsibility or obligation to any owner of a beneficial interest in a Global Unit, any Agent Member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any beneficial ownership interest in the Units represented by such Global Unit or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Units. All notices and communications to be given to the Holders and all payments to be made to Holders under the Units shall be given or made only to or upon the order of the Holders (which shall be the Depositary or its nominee in the case of a Global Unit). Except as set forth herein, the rights of owners of beneficial interests in any Global Unit shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Units Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(xxiii)The Units Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Unit (including any transfer between or among the Agent Members or beneficial owners in any Global Unit) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Agreement and the Unit Certificate, and to examine the same to determine substantial compliance as to form with the express requirements hereof and thereof.
Section 2.09. Persons Deemed Owners. Prior to due presentment of a certificate evidencing a Registered Unit for registration of transfer, the Company, the Trustee, the Warrant Agent and the Units Trustee, as applicable, and any agent of the Company, the Trustee, the Warrant Agent or the Units Trustee, as applicable, may treat the Person in whose name any Registered Security evidenced by such Unit Certificate is registered as the owner of the Units evidenced thereby for all purposes whatsoever, whether or not payment with respect to any Security constituting a part of the Units evidenced thereby shall be overdue and notwithstanding any notice to the contrary. None of the Company, the Trustee, the Warrant Agent, the Units Trustee or any agent of the Company, the Trustee, the Warrant Agent or the Units Trustee shall be affected by notice to the contrary.
Section 2.10. Proxies. The Holder of a Global Unit may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold beneficial interests through Agent Members, to take any action that a Holder is entitled to take under this Agreement or the Units in accordance with the Depositary’s and the relevant Agent Member’s customary procedures. The Units Trustee, as the registered holder and custodian of the Attached Warrants and Attached Notes, on behalf of the beneficial owners, is entitled to take action in respect of the Warrants, the Warrant Agreement, the Notes and the Indenture, at the direction of the Holders of Global Units in accordance with the Depositary’s and the relevant Agent Member’s customary procedures. For the avoidance of doubt, the Units Trustee is entitled, as the holder of the Attached Notes and Attached Warrants, to take any actions or exercise any rights under the Warrant Agreement or Indenture as and to the same extent as the Warrant Agent or Trustee would be permitted to take upon the direction of holders of the Notes and the Warrants, respectively, at the direction of the Holders of Global Units in accordance with the Depositary’s and the relevant Agent Member’s customary procedures.
Section 2.11. Exchange of Global Units and Definitive Units.
(a)Holders of Global Units shall receive Definitive Units in exchange for interests in such Global Units only if (i) DTC notifies the Company that it is unwilling or unable to continue as Depositary with respect to the Global Units or
if at any time it ceases to be a clearing agency under the Exchange Act, and a successor Depositary registered as a clearing agency under the Exchange Act is not appointed by the Company within 90 days after receipt of such notice or after it becomes aware that DTC has ceased to be such a clearing agency or (ii) a default under the Warrant Agreement of Warrants has occurred and is continuing and the Units Trustee has received a request from the Depositary.
(b)All Definitive Units issued upon exchange pursuant to this Section
2.11 shall be the valid obligations of the Company, evidencing the same obligations of the Company and entitled to the same benefits under this Agreement as the Global Unit, or portion thereof, surrendered upon such exchange.
(c)Upon any sale or transfer of a Transfer Restricted Unit that is a Definitive Unit, the Units Trustee shall permit the Holder thereof to exchange such Transfer Restricted Unit for a Definitive Unit that does not bear the Restricted Units Legend and the Definitive Units Legend and rescind any restriction on the transfer of such Transfer Restricted Unit if the Holder certifies in writing to the Units Trustee that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form attached as Annex 1 to the Unit Certificate) and provides such legal opinions, certifications and other information as the Company or the Units Trustee may reasonably request.
(d)In the event of the occurrence of any of the events specified in Section 2.11(a), the Company will promptly make available to the Units Trustee a reasonable supply of Definitive Units in definitive, fully registered form.
(e)Neither the Company nor the Units Trustee will be liable or responsible for any registration or transfer of any Units that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary.
Section 2.12. Mutilated, Destroyed, Lost and Stolen Unit Certificates. If any mutilated Unit Certificate is surrendered to the Units Trustee, the Company shall execute and deliver to the Units Trustee, Trustee and the Warrant Agent, as appropriate, and the Units Trustee, Trustee and the Warrant Agent shall authenticate, countersign and deliver, as appropriate, in exchange therefor, new Securities comprised by Units, of like tenor and evidenced by a new Unit Certificate evidencing the same aggregate principal amount of Units and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee and the Warrant Agent and/or the Units Trustee, as appropriate, (iii) evidence to their satisfaction of the destruction, loss or theft of any Unit Certificate and (iv) such security or indemnity as may be required by them to hold each of them and any agent of any
of them harmless, then, in the absence of notice to the Company and the Trustee and the Warrant Agent as appropriate, that such Unit Certificate has been acquired by a bona fide purchaser, the Company shall execute and deliver to the Trustee and the Warrant Agent and/or the Units Trustee, as appropriate, and the Trustee in accordance with the Indenture shall authenticate the Notes constituting a part of the Units evidenced by such Unit Certificates, the Warrant Agent in accordance with the Warrant Agreement shall countersign the Warrants constituting a part of the Units evidenced by such Unit Certificates, and the Units Trustee in accordance with this Agreement, the Indenture, the Warrant Agreement shall authenticate the Units, and the Units Trustee shall deliver to the Holder, as appropriate, in lieu of any such destroyed, lost or stolen Unit Certificate, new Securities comprised by Units, of like tenor and evidenced by a new Unit Certificate evidencing the same aggregate principal amount of Units and bearing a number not contemporaneously outstanding.
Unless otherwise specified pursuant to Section 2.03, notwithstanding the foregoing and subject expressly to Section 3.01, the Company shall not be obligated to execute and deliver to the Trustee, the Warrant Agent or the Units Trustee, and none of the Trustee (under the Indenture), the Warrant Agent (under the Warrant Agreement), or the Units Trustee shall be obligated to authenticate, countersign or deliver to the Holder, a new Unit Certificate (or any Security constituting a part of such Unit) under this Section 2.12 during the period beginning any time on or after the opening of business 15 days before the day of mailing of a notice of redemption or of any other exercise of any right held by the Company with respect to the Unit (or any Security constituting a part of such Unit) and ending at the close of business on the day of the giving of such notice, that evidences any Unit or Security selected or called for redemption or with respect to which such right has been exercised. In lieu of delivery of a new Unit Certificate, upon satisfaction of the applicable conditions specified in clauses (i) and (ii) of the preceding paragraph, the Units Trustee shall deliver or cause to be delivered on the applicable redemption date in respect of Notes constituting a part of the
Units evidenced by such Unit Certificate that are selected or called for redemption, the redemption price of such Notes.
Upon the issuance of any new Unit Certificate under this Section, the Company and the Units Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Units Trustee) connected therewith.
Every new Unit Certificate executed pursuant to this Section in lieu of any destroyed, lost or stolen Unit Certificate shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Unit Certificate (and the Securities evidenced thereby) shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Agreement
equally and proportionately with any and all other Unit Certificates delivered hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Unit Certificates.
Section 2.13. Payments to Beneficial Owners. All amounts received by the Units Trustee, as the holder of the Attached Notes, under the Indenture in respect of Attached Notes, including cash interest or on account of payments made in respect of Section 3.07, 3.10, 4.15 and 4.16 of the Indenture shall be distributed ratably to the Holders of the Units (calculated as of the applicable Record Date (as defined in the Indenture)).
Section 2.14. Cancellation. All Unit Certificates surrendered for payment, and all Unit Certificates surrendered for redemption of any Notes shall, if surrendered to any Person other than the Trustee, the Warrant Agent or the Units Trustee, as appropriate, be delivered to the Trustee, the Warrant Agent and/or the Units Trustee, as appropriate, and, if not already cancelled, any Note or Warrant evidenced by such Units shall be promptly cancelled by the Trustee, the Warrant Agent and/or the Units Trustee, as appropriate; provided that if such surrender for payment or redemption is not accompanied by a Termination Event Notice and, if required by the Units Trustee, an Opinion of Counsel, a Prohibited Event Unit Split Date with respect to such Units shall be deemed to occur as of the date of payment or redemption, as applicable, and for each principal amount of a Unit subject to such Prohibited Event Unit Split Date, there shall immediately separate from such Unit as provided in Section 3.01 a number of Warrants equal to the Unit Warrant Number corresponding to such principal amount as of the time of such separation (subject to Section 3.08(b) of the Warrant Agreement), which separated Warrants shall be freely transferrable and, for the avoidance of doubt, such Warrants shall not be cancelled. No Unit Certificates shall be authenticated and countersigned in lieu of or in exchange for any Unit Certificates cancelled as provided in this Section. All cancelled Unit Certificates held by the Units Trustee shall be disposed of in accordance with its customary procedures and evidence of their disposition shall be delivered by the Units Trustee to the Company.
If the Company or any Affiliate of the Company shall acquire any Unit Certificate in connection with a Termination Event, such acquisition shall not operate as a cancellation of such Unit Certificate unless and until such Unit Certificate is delivered to the Trustee, the Warrant Agent and/or the Units Trustee, as appropriate, for the purpose of cancellation. If the Company or any Affiliate of the Company shall acquire any Unit Certificate in connection with a Prohibited Event, a Prohibited Event Unit Split Date with respect to such Units shall be deemed to occur as of the date of payment or redemption, as applicable, of the
Notes, and the Warrants shall be separated from such Units as provided in Section 3.01(a) and, for the avoidance of doubt, such Warrants shall not be cancelled.
Section 2.15. Tax Treatment. Each Holder acknowledges that (i) the Company intends to treat each Unit as a single contingent payment debt instrument for U.S. federal income tax purposes and (ii) the Holder is required to treat each Unit in a manner consistent with the Company’s determinations absent appropriate disclosure to the Internal Revenue Service. A Holder may obtain the comparable yield and the projected payment schedule of the Units by submitting a written request for it to the Company at c/o Diebold Nixdorf, Incorporated, 50 Executive Parkway, PO Box 2520, Hudson, Ohio 44236-1605, Attention: Corporate Secretary.
ARTICLE 3 SEPARATION OF UNITS
Section 3.01. Separation of Units. With respect to any Unit, such Unit (or, if less than the aggregate principal amount of such Unit, the affected principal amount thereof) shall be separated into its constituent Securities in accordance with the separation and notification procedures set forth in Section 3.02 on the first Business Day that is also a Trading Day on or after the earliest to occur of (x) the Prohibited Event Unit Split Date with respect to the principal amount of Notes comprising all or part of such Unit, (y) the date on which any Event of Default under the Indenture shall have occurred and the indebtedness under the Indenture shall have been accelerated pursuant to Section 6.02 thereof and
(z)April 1, 2024.
Section 3.02. Separation, Adjustment and Notification Procedures.
(a)Upon any of (x) the receipt by the Units Trustee of a Prohibited Event Unit Split Date Notice (substantially in the form attached hereto as Exhibit C-1), (y) the receipt by the Units Trustee of an Indenture Default Notice (substantially in the form attached hereto as Exhibit C-2) and (z) if any Units remain Outstanding on such date, April 1, 2024, the Units Trustee shall promptly cause to be separated the Warrants and, if not separately paid and cancelled in connection with one or more Prohibited Events, the Notes related to the Units subject to the relevant Unit Split Date, and all such Units shall be cancelled, and the applicable Warrants and Notes shall be freely transferrable (subject to applicable securities laws). Whenever Global Units are separated, the Units Trustee shall give effect to such separation by causing Schedule A of the Global Unit to be endorsed and the Unit Register to be updated to reflect any decrease in the Global Units as a result of such separation, the Trustee shall cause the Attached Notes (representing the Notes prior to such separation that form a part of the Units) and Schedule A of the Global Notes (representing the Notes following such separation) to be endorsed to reflect such separation and the Warrant Agent
shall cause the Initial Warrant Certificates (representing the Warrants prior to such separation that form a part of the Units) and Schedule A of the Global Warrant (representing Warrants following such separation) to be endorsed to reflect such separation. For the portion of the principal amount of any Unit being so separated, the number of such separated Warrants shall be equal to the Unit Warrant Number corresponding to the relevant principal amount of Notes forming a part of such Unit (including any PIK Interest, if applicable) as of the time of separation, subject to Section 3.08(b) of the Warrant Agreement.
(b)Upon the completion of the foregoing procedures, such Warrants and, if applicable, Notes may be transferred, assigned or exchanged by the Holder thereof separately (subject to applicable securities laws), and will be represented by separate interests on the books of the respective agent and/or trustee, as of April 1, 2024, or, if the relevant Unit Split Date occurs prior to April 1, 2024, generally within one Business Day of such Unit Split Date (including any applicable Prohibited Event Unit Split Date), and the Company shall take commercially reasonable efforts to have the Warrants and the Notes issued on such date (to the extent not previously issued), and will have used commercially reasonable efforts to procure CUSIP numbers for such securities, and to have such CUSIP numbers made eligible for DTC, for such purpose prior to the date of separation, in the form of one or more fully registered global securities which will be deposited with, or on behalf of, DTC and will be registered in the name of a nominee of DTC. Unless otherwise required by applicable law, any such Warrants shall be delivered free from any restrictive legends and bearing an unrestricted CUSIP number. Upon the completion of such procedures, the Units Trustee shall inform each Holder of such completion within one Business Day.
(c)As early as practical preceding any Unit Split Date, the Company shall (x) deliver a Prohibited Event Unit Split Date Notice or an Indenture Default Notice, as the case may be, to the Warrant Agent and the Units Trustee, if the relevant Unit Split Date occurs prior to April 1, 2024, and (y) calculate and transmit to the Warrant Agent and the Units Trustee a written notice of the Unit Warrant Number, the number of separated Warrants and the amount of cash, if any, payable in lieu of issuing any fractional Warrant as provided in Section 3.08(b) of the Warrant Agreement, for each Unit to which the Unit Split Date relates and a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made, and the Units Trustee shall cause such notice and statement to be sent or communicated to the Holders and owners of a beneficial interest in the applicable Units. The Company shall make these calculations in good faith and in a commercially reasonable manner and absent manifest error, such calculations shall be final and binding on the Holders, the owners of a beneficial interest in the applicable Units, the Units Trustee and the Warrant Agent. Neither the Warrant Agent nor the Units Trustee shall have any duty or obligation to make such calculations or investigate or confirm whether the Company’s calculations are accurate or correct.
ARTICLE 4
Other Provisions Relating to Rights of Holders of Units
Section 4.01. Holder May Enforce Rights. Any Holder of Units may, without the consent of the Units Trustee, the Depositary, any participant of the Depositary or any other Holder, in and for its own behalf, enforce, and may institute and maintain, any suit, action or proceeding against the Company suitable to enforce its rights under this Agreement; provided that a Holder of Units may only enforce its rights under the Securities comprised by such Unit in accordance with the terms of the Indenture and the Warrant Agreement, as applicable.
ARTICLE 5 THE UNITS TRUSTEE
Section 5.01. Certain Duties and Responsibilities. (a) The Units Trustee undertakes to perform such duties, and only such duties, as are specifically set forth in this Agreement.
(b)No provision of this Agreement shall be construed to relieve the Units Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that
(xxiv)the duties and obligations of the Units Trustee with respect to the Units shall be determined solely by the express provisions of this Agreement and the Units and the Units Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement and in the Units, and no implied covenants or obligations shall be read into this Agreement or the Units against the Units Trustee; and
(xxv)in the absence of bad faith on its part, the Units Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Units Trustee and conforming to the requirements of this Agreement or the Units but in the case of any such statements, certificates or opinions that by any provision hereof are specifically required to be furnished to the Units Trustee, the Units Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Agreement or the Units, as applicable (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(c)The Units Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Units Trustee was negligent in ascertaining the pertinent facts.
(d)No provision of this Agreement or the Units shall require the Units Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(e)Whether or not therein expressly so provided, every provision of this Agreement relating to the conduct or affecting the liability of or affording protection to the Units Trustee shall be subject to the provisions of this Section.
(f)In no event shall the Units Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether it has been advised of the likelihood of such loss or damage and regardless of the form of action.
(g)In no event shall the Units Trustee be responsible or liable for any failure or delay in the performance of its obligations under this Agreement or the Units arising out of or caused by, directly or indirectly, forces beyond its reasonable control, including without limitation strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and, provided such events are beyond the reasonable control of the Units Trustee, interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
Section 5.02. Certain Rights of Units Trustee. Subject to the provisions of Section 5.01:
(a)the Units Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b)any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate or Issuer Order and any resolution of the Board of Directors of the Company, as the case may be, may be sufficiently evidenced by a Board Resolution;
(c)the Units Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection with respect to any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon in accordance with such advice or Opinion of Counsel;
(d)the Units Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture, note, coupon, security or other paper or document, but the Units Trustee, in its discretion, may make reasonable further inquiry or investigation into such facts or matters related to the issuance of the Notes or the Warrants, as the case may be, and, if the Units Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, at reasonable times during normal business hours, personally or by agent or attorney (and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation);
(e)the Units Trustee may execute any of the powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Units Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder; and
(f)the Units Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Agreement.
Section 5.03. Not Responsible for Recitals or Issuance of Units. The recitals contained herein, in the Indenture, in the Warrant Agreement and in the Units, except the Trustee’s and Warrant Agent’s certificates of authentication or countersignature, shall be taken as the statements of the Company, and none of the Trustee, Units Trustee or the Warrant Agent assumes any responsibility for their correctness. The Units Trustee makes no representations as to the validity or sufficiency of this Agreement or of the Units. None of the Trustee, Units Trustee or the Warrant Agent shall be accountable for the use or application by the Company of the proceeds with respect to Units or be responsible for exercising any remedy hereunder on behalf of the Holders, except as expressly provided in this Agreement.
Section 5.04. May Hold Units. The Units Trustee, the Trustee, the Warrant Agent, or any other agent of the Company, the Trustee, the Warrant Agent, or the Units Trustee, in its individual or any other capacity, may become the owner or pledgee of Units and may otherwise deal with the Company and receive, collect, hold and retain collections from the Company with the same rights it would have if it were not such other agent, the Trustee, the Warrant Agent or the Units Trustee.
Section 5.05. Compensation and Reimbursement. The Company agrees:
(a)to pay to the Units Trustee from time to time such compensation for all services rendered by it hereunder as mutually agreed to between the Units Trustee and the Company;
(b)except as otherwise expressly provided herein, to reimburse the Units Trustee and any predecessor Units Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Units Trustee in accordance with any provision of this Agreement (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and
(c)to indemnify the Units Trustee and any predecessor Units Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this Agreement and its duties hereunder and the enforcement of this Agreement (including this Section 5.05), including the costs and expenses of defending itself against or investigating any claim of liability in connection with the exercise or performance of any of its powers or duties hereunder.
Section 5.06. Corporate Agent Required; Eligibility. There shall at all times be a trustee hereunder which shall be a corporation organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, having, together with its parent, a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal, state or District of Columbia authority and willing to act on reasonable terms. If such corporation, or its parent, publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Units Trustee hereunder shall at all times be the Trustee under the Indenture and the Warrant Agent under the Warrant Agreement, subject to receipt of an Opinion of Counsel that the same Person is precluded by law from acting in such capacities. If at any time the Units Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in Section 5.07. The Units Trustee may appoint one or more sub-trustees with offices or agencies in a city or cities outside the United States.
Section 5.07. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Units Trustee and no appointment of a successor Units Trustee pursuant to this Article shall become effective until the acceptance
of appointment by the successor Units Trustee in accordance with the applicable requirements of Section 5.08.
(b)The Units Trustee may resign by giving written notice thereof to the Company and the Holders, in accordance with Section 6.06 and Section 6.07, 60 days prior to the effective date of such resignation. The Units Trustee may be removed at any time upon 60 days’ notice by the filing with it of an instrument in writing signed on behalf of the Company and specifying such removal and the date when it is intended to become effective. If the instrument of acceptance by a successor Units Trustee required by Section 5.08 shall not have been delivered to the Units Trustee within 30 days after the giving of such notice of resignation, the resigning Units Trustee may petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Units Trustee. (c)If at any time (i) the Units Trustee shall cease to be eligible under Section 5.06, or shall cease to be eligible as Trustee under the Indenture or as Warrant Agent under the Warrant Agreement, and shall fail to resign after written request therefor by the Company or by any Holder, or (ii) the Units Trustee shall become incapable of acting with respect to the Units or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Units Trustee or of its property shall be appointed or any public officer shall take charge or control of the Units Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Company, by Board Resolution, may remove the Units Trustee and appoint a successor Units Trustee, or (B) any Holder who has been a bona fide Holder of Units for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction, at the expense of the Company, for the removal of the Units Trustee and the appointment of a successor Units Trustee or Trustees. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Units Trustee and appoint a successor Units Trustee. (d)If the Units Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the Units Trustee for any cause, the Company, by Board Resolution, shall promptly appoint a successor Units Trustee or Trustees (other than the Company) and shall comply with the applicable requirements of Section 5.08. If no successor Units Trustee shall have been so appointed by the Company and accepted appointment in the manner required by Section 5.08, any Holder who has been a bona fide Holder of Units for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction, at the expense of the Company, for the appointment of a successor Units Trustee. (e)The Company shall give, or shall cause such successor Units Trustee to give, notice of each resignation and each removal of the Units Trustee
and each appointment of a successor Units Trustee to all Holders of Units in accordance
with Section 6.07. Each notice shall include the name of the successor Units Trustee and the address of its Corporate Trust Office.
Section 5.08. Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Units Trustee, every such successor Units Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Units Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Units Trustee shall become effective and such successor Units Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, agencies and duties of the retiring Units Trustee, with like effect as if originally named as Units Trustee hereunder; but, on the request of the Company or the successor Units Trustee, such retiring Units Trustee shall, upon payment of all amounts due and payable to it pursuant to Section 5.05, execute and deliver an instrument transferring to such successor Units Trustee all the rights and powers of the retiring Units Trustee and shall duly assign, transfer and deliver to such successor Units Trustee all property and money held by such retiring Units Trustee hereunder. Any retiring Units Trustee shall, nonetheless, retain a prior claim upon all property or funds held or collected by such Units Trustee to secure any amounts then due it pursuant to Section 5.05.
(b)Upon request of any such successor Units Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Units Trustee all such rights, powers and agencies referred to in paragraph (a) of this Section. (c)No successor Units Trustee shall accept its appointment unless at the time of such acceptance such successor Units Trustee shall be eligible under Section 5.06.
(d)Upon acceptance of appointment by any successor Units Trustee as provided in this Section, the Company shall give notice thereof to the Holders of Units in accordance with Section 6.07. If the acceptance of appointment is substantially contemporaneous with the resignation of the Units Trustee, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.07. If the Company fails to give such notice within ten days after acceptance of appointment by the successor Units Trustee, the successor Units Trustee shall cause such notice to be given at the expense of the Company.
Section 5.09. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Units Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Units Trustee shall be a party, or any corporation succeeding to all or substantially all the agency business
of the Units Trustee, shall be the successor of the Units Trustee hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto, provided that such corporation shall be otherwise eligible under this Article.
Section 5.10. Tax Compliance. (a) The Units Trustee, on its own behalf and on behalf of the Company, will comply with all applicable certification, information reporting and withholding (including “backup” withholding) requirements imposed by applicable United States, federal and New York State tax laws, regulations or administrative practice (i) with respect to payments on, or transfer or redemption of the Notes or the Warrants or (ii) if specifically instructed by the Company, with respect to the issuance, delivery, holding, or exercise of rights (other than by payment, transfer or redemption) under the Notes or the Warrants. Such compliance shall include, without limitation, the preparation and timely filing of required returns with respect to, and the timely payment of, all amounts required to be withheld to the appropriate taxing authority or its designated agent. The Company will provide to the Units Trustee such information as it may reasonably request in order to comply with this Section.
(b)The Units Trustee shall comply with any direction received from the Company with respect to the application of such requirements to particular payments or holders or in other particular circumstances, and may for purposes of this Agreement rely on any such direction in accordance with the provisions of Section 5.01(b)(2) hereof.
(c)The Units Trustee shall maintain all appropriate records documenting compliance with such requirements, and shall make such records available on request at reasonable times during normal business hours to the Company or to their authorized representatives duly authorized in writing.
ARTICLE 6 MISCELLANEOUS PROVISIONS
Section 6.01. Amendments. (a) This Agreement and the terms of the Units may be amended (by means of an agreement supplemental hereto or otherwise) by the Company and the Units Trustee, without the consent of the Holders, (i) for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective or inconsistent provision contained herein or therein,
(ii) to evidence and provide for the acceptance of appointment hereunder by a successor Units Trustee with respect to the Units, (iii) for the purposes of providing for compliance with the applicable securities laws (to the extent there are changes in applicable law following the date hereof), including with respect to the transfer restrictions set forth herein, or (iv) in any other manner which the
Company may deem necessary or desirable and which will not adversely affect the interests of the affected Holders.
(b)The Company and the Units Trustee may modify or amend this Agreement (by means of an agreement supplemental hereto or otherwise) with the consent of Holders holding not less than a majority in aggregate principal amount of the then Outstanding Units affected thereby for any purpose; provided, however, that no such modification or amendment that materially and adversely affects (i) the exercise or separation rights of the affected Holders or reduces the percentage of the principal amount of Outstanding Units the consent of the Holders of which is required for modification or amendment of this Agreement, or (ii) any Key Provision or any Key Definition may be made without the consent of each Holder materially and adversely affected thereby. In the case of Units evidenced by one or more Global Unit Certificates, the Company and the Units Trustee shall be entitled to rely upon certification in form satisfactory to each of them that any requisite consent has been obtained from holders of beneficial ownership interests in the relevant Global Unit Certificate. Such certification may be provided by participants of the Depositary acting on behalf of such beneficial owners of Units, provided that any such certification is accompanied by a certification from the Depositary as to the Unit holdings of such participants. For
purposes hereof, “Key Provisions” shall include each of Sections 2.03, 2.05, 3.01, 3,02, 4.01 and this Section 6.01, and “Key Definitions” shall include “Maximum Number of Warrant Shares,” “Prohibited Event,” “Prohibited Event Unit Split Date,” “Unit,” “Unit Split Date,” “Unit Warrant Number,” “Termination Event,” “Warrant” and “Warrant Agreement.” For the avoidance of doubt, any and all calculations or determinations made by the Company, the Units Trustee, the Trustee, the Warrant Agent or their authorized representatives in accordance with the Key Provisions and Key Definitions shall not be considered an amendment or modification of this Agreement.
(c)Upon the request of the Company, accompanied by a copy of a Board Resolution (which Board Resolution may provide general terms or parameters for such action and may provide that the specific terms of such action may be determined in accordance with or pursuant to an Officer’s Certificate) authorizing the execution of any such amendment, and upon the filing with the Units Trustee of evidence of the consent of Holders as aforesaid, the Units Trustee shall join with the Company in the execution of such amendment unless such amendment affects the Units Trustee’s own rights, duties or immunities under this Agreement or otherwise, in which case the Units Trustee may in its discretion, but shall not be obligated to, enter into such amendment. In executing, or accepting the additional duties created by, any amendment permitted by this Section, the Units Trustee shall receive, and shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such amendment is authorized or permitted by this Agreement and is enforceable against the Company in accordance with its terms. The fact and date of the execution of any
consent of Holders, or the authority of the Person executing the same, may be proved by the certificate of any notary public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the person executing such instruments acknowledged to him the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer. Where such execution is by or on behalf of any legal entity other than an individual, such certificate or affidavit shall also constitute sufficient proof of the authority of the person executing the same. The ownership of Registered Units shall be proved by the Unit Register or by a certificate of the Units Trustee, as registrar for the Units. For the avoidance of doubt, such action may relate to the Units as well as to its constituent Securities, this Agreement, the Warrant Agreement and the Indenture for so long as any Warrants and Notes have not separated pursuant to Article III hereof and form part of Outstanding Units.
The Depositary shall report only one result of each solicitation of proxies to the Units Trustee.
(d)It shall not be necessary for the consent of the Holders under this Section to approve the particular form of any proposed amendment, but it shall be sufficient if such consent shall approve the substance thereof.
(e)The Company may set a record date for purposes of determining the identity of Holders of Registered Units entitled to consent to any action by consent authorized or permitted hereby. Such record date shall be the later of 30 days prior to the first solicitation of such consent or the date of the most recent list of Holders of Registered Units furnished to the Units Trustee. The ownership of Registered Units shall be proved by the Unit Register. The Units Trustee shall vote as the custodian of the Warrants and Notes in respect of any action relating to such Securities or the Warrant Agreement or the Indenture in the manner directed by the Holders of the Registered Units. Any notices received by the Units Trustee shall be distributed to Holders of Units within two Business Days.
Section 6.02. Incorporators, Shareholders, Officers and Directors of the Company Immune from Liability. No recourse under or upon any obligation, covenant or agreement contained in this Agreement, or in any Warrant Agreement or any Notes and/or Warrants, or because of any indebtedness evidenced thereby, shall be had against any incorporator, or against any past, present or future shareholder, officer, attorney-in-fact or director, as such, of the Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or penalty or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Units by the Holders thereof and as part of the consideration for the issue thereof, provided that nothing in this Article shall impair the obligations, covenants and agreements of the Company contained in this Agreement and in any Notes and/or Warrants constituting a part of the Units.
Section 6.03. Compliance Certificates and Opinions. Except as otherwise expressly provided by this Agreement, upon any application or request by the Company to the Units Trustee to take any action under any provision of this Agreement, the Company, as applicable, shall furnish to the Units Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Agreement relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Agreement relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Agreement shall include:
(xxvi)a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(xxvii)a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(xxviii)a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(xxix)a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 6.04. Form of Documents Delivered to Units Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate, statement or opinion of an officer or Opinion of Counsel of or for the Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or
opinion is based are erroneous. Any such certificate, statement or opinion may be based, insofar as it relates to factual matters, upon a certificate, statement or opinion of, or representations by, an officer or officers of the Company, as applicable, stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Agreement, they may, but need not, be consolidated and form one instrument.
Section 6.05. Maintenance of Office or Agency. So long as Units are authorized for issuance pursuant to this Agreement or are Outstanding hereunder, the Company will maintain an office or agency where Units may be presented or surrendered for delivery, where Units may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of Units and this Agreement may be served. The Company hereby initially designates the Units Trustee for each of said purposes. The Company will give prompt written notice to the Units Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Units Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Units Trustee, and the Company hereby appoints the Units Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where Units may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations to maintain offices or agencies provided for in this Section 6.05. The Company will give prompt written notice to the Units Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 6.06. Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver or act of Holders or other document provided or permitted by this Agreement to be made upon, given or furnished to, or filed with,
(a)the Units Trustee, by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, to the Units Trustee at its Corporate Trust
Office, 1350 Euclid Avenue, Suite 1100, Cleveland, Ohio 44115, Attention: Global Corporate Trust or at any other address previously furnished in writing by the Units Trustee to the Holders and the Company, or
(b)the Company by the Units Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or filed in writing and personally delivered or mailed, first-class postage prepaid, addressed to the Company at c/o Diebold Nixdorf, Incorporated, 5995 Mayfair Road, PO Box 3077, North Canton, Ohio 44720, Attention: Jonathan B. Leiken, or at any other address previously furnished in writing to the Units Trustee by the Company.
Section 6.07. Notices to Holders. Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the Registry and shall be sufficiently given if so mailed within the time prescribed. Any notice to the owners of a beneficial interest in a Global Unit shall be distributed through the Depositary in accordance with the procedures of the Depositary. Communications to owners shall be deemed to be effective at the time of dispatch to the Depositary. Failure to provide a notice or communication to a Holder or owner of a beneficial interest in a Global Unit or any defect in it shall not affect its sufficiency with respect to other Holders or owners of a beneficial interest in a Global Unit. If a notice or communication is provided in the manner provided above, it is duly given, whether or not the intended recipient actually receives it. Any notice received by the Units Trustee in respect of the Attached Warrants or Attached Notes shall be transmitted by the Unit Trustee to the Holders as provided in this Section 6.07.
Section 6.08. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 6.09. Successors and Assigns. All covenants and agreements in this Agreement, the Units and the Unit Certificates by the Company shall bind its successors and assigns, whether so expressed or not.
Section 6.10. Separability Clause. In case any provision in this Agreement or in the Units, Unit Certificates or Notes or Warrants shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof and thereof shall not in any way be affected or impaired thereby.
Section 6.11. Benefits of Agreement. Nothing in this Agreement or in the Units, Unit Certificates, the Indenture or the Warrant Agreement, the Notes or the Warrants, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders of any Units, any benefits or any legal or equitable right, remedy or claim under this Agreement.
Section 6.12. Governing Law; Waiver of Trial by Jury. This Agreement, the Units, the Unit Certificates, the Notes and the Warrants shall be governed by, and construed in accordance with, the laws of the State of New York. The Company and the Units Trustee irrevocably waive, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Section 6.13. Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto on separate counterparts, each of which, when so executed and delivered, shall be deemed an original, but all such counterparts shall together constitute one and the same instrument. The words “execution,” “signed,” “signature,” “delivery,” and words of like importance in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means. All notices, approvals, consents, requests and any communications hereunder must be in writing (provided that any communication sent to the Units Trustee hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the Trustee by the authorized representative), in English. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the Units Trustee, including, without limitation, the risk of the Units Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
Section 6.14. Inspection of Agreement. A copy of this Agreement shall be available at all reasonable times during normal business hours at the Corporate Trust Office of the Units Trustee for inspection by any Holder.
Section 6.15. Confidentiality. The Units Trustee and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public Holder or beneficial owner information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement, including the fees for services, shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Section 6.16. Incorporation by Reference. All of the rights, protections and immunities granted to the Units Trustee under the Indenture shall be incorporated by reference as if fully set forth herein.
[Signatures on following pages]
IN WITNESS WHEREOF, the Company, the Units Trustee, the Trustee and the Warrant Agent have duly executed this Agreement as of the day and year first above set forth.
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DIEBOLD NIXDORF, INCORPORATED |
By: |
/s/ Jeffrey Rutherford |
| Name: Jeffrey Rutherford |
| Title: Executive Vice President and Chief Financial Officer |
[Signature Page to Unit Agreement]
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Units Trustee |
By: |
/s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Authorized Signatory |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Paying Agent under the Indenture |
By: |
/s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Authorized Signatory |
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Warrant Agent under the Warrant Agreement |
By: |
/s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Authorized Signatory |
[Signature Page to Unit Agreement]
EXHIBIT A
[INSERT IN GLOBAL UNIT CERTIFICATE FOR REGISTERED UNITS] [FACE]
[This Unit Certificate is a Global Unit Certificate within the meaning of the Unit Agreement hereinafter referred to and is registered in the name of The Depository Trust Company (the “Depositary”) or a nominee of the Depositary. Unless and until it is exchanged in whole or in part for an aggregate principal amount of Units in definitive registered form, this Unit Certificate may not be transferred except as a whole by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.
A Unit is a “Contingent Payment Debt Instrument” that has been issued with “Original Issue Discount”. A holder may obtain the issue price, amount of original issue discount, issue date, yield to maturity, comparable yield and projected payment schedule by submitting a written request for it to Diebold Nixdorf, Incorporated at c/o Diebold Nixdorf, Incorporated, 50 Executive Parkway, PO Box 2520, Hudson, Ohio 44236-1605, Attention: Corporate Secretary.
Unless this Unit Certificate is presented by an authorized representative of the Depositary (55 Water Street, New York) to Diebold Nixdorf, Incorporated or its agent for registration of transfer, exchange or payment, and any Unit issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of the Depositary and any payment hereon is made to Cede & Co. or such other entity as is requested by an authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
[Restricted Units Legend:]
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT
B-3-2
FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF UNITS WITH A RULE 144A OR IAI CUSIP: [ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT][IN THE CASE OF UNITS WITH A REGULATION S CUSIP: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT, THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE UNITS TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF UNITS WITH A REGULATION S CUSIP: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS
SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS FORMING PART OF THIS SECURITY MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT.]
BY ITS ACQUISITION OF THIS SECURITY, THE HOLDER THEREOF WILL BE DEEMED TO HAVE REPRESENTED AND WARRANTED THAT EITHER (1) NO PORTION OF THE ASSETS USED BY SUCH HOLDER TO ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST HEREIN CONSTITUTES THE ASSETS OF ANY (A) “EMPLOYEE BENEFIT PLAN” WITHIN THE MEANING OF SECTION 3(3) OF THE U.S. EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”) WHICH IS SUBJECT TO TITLE I OF ERISA, (B) PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER ARRANGEMENT DESCRIBED IN SECTION 4975 OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE “CODE”), WHICH IS SUBJECT TO THE PROHIBITED TRANSACTION PROVISIONS OF SECTION 4975 OF THE CODE OR ANY OTHER U.S. OR NON-U.S. FEDERAL, STATE, LOCAL OR OTHER LAWS OR REGULATIONS THAT ARE SIMILAR TO SUCH PROVISIONS OF TITLE I OF ERISA OR SECTION 4975 OF THE CODE (COLLECTIVELY, “SIMILAR LAWS”), OR (C) ENTITY WHOSE UNDERLYING ASSETS ARE CONSIDERED TO INCLUDE THE ASSETS OF ANY OF THE FOREGOING DESCRIBED IN CLAUSES (A) AND (B), PURSUANT TO ERISA, ANY SIMILAR LAWS OR OTHERWISE, OR (2) THE ACQUISITION AND HOLDING OF THIS SECURITY OR ANY INTEREST HEREIN WILL NOT CONSTITUTE OR RESULT IN A NON-EXEMPT PROHIBITED TRANSACTION UNDER TITLE I OF ERISA OR SECTION 4975 OF THE CODE OR A VIOLATION UNDER ANY APPLICABLE SIMILAR LAWS.]
[Definitive Units Legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE UNITS TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS THE UNITS TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
UNIT CERTIFICATE FOR REGISTERED UNITS
(issuable in minimum denominations of $2,000 principal amount and integral multiples of $1.00 principal amount in excess thereof, with such amount representing the aggregate principal amount of Notes underlying the Units)
Evidencing the Ownership or Rights of the Holder Under the Securities Specified Below
8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (“Notes”) Warrants to purchase common shares, $1.25 par value per share, of Diebold
Nixdorf, Incorporated (“Warrants”)
CUSIP No.
Certificate No.:
Aggregate principal amount of Units: See Schedule A1
This Unit Certificate certifies that (the “Holder”), or registered assigns, is the registered owner of $[ in principal amount of Units]2 [the principal amount of Units specified in Schedule A hereto].3
Each Unit represents ownership by the Holder of Notes and Warrants constituting the Unit, subject to the Unit Agreement (the “Unit Agreement”) dated as of December [29], 2022 between Diebold Nixdorf, Incorporated and U.S. Bank Trust Company, National Association, as Units Trustee, as Trustee under the Indenture referred to therein, and as Warrant Agent under the Warrant Agreement referred to therein.
1 Insert in registered Global Unit Certificates.
2 Insert in Definitive Registered Units
3 Insert in registered Global Unit Certificates.
IN WITNESS HEREOF, the Company has caused this instrument to be duly executed.
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DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
CERTIFICATE OF AUTHENTICATION
This is one of the Units referred to in the within-mentioned Unit Agreement:
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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Units Trustee |
By: |
Authorized Signatory |
Dated:
[INSERT APPROPRIATE NOTE OR WARRANT CERTIFICATES, AS APPLICABLE]
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| Reference is hereby made to the further provisions of this certificate set forth on the succeeding pages hereof, which further provisions shall for all purposes have the same effect as if set forth at this place. |
|
|
|
SCHEDULE A
[INSERT IN GLOBAL
UNIT CERTIFICATE FOR REGISTERED UNITS SCHEDULE OF INCREASES/REDUCTIONS]
The initial aggregate principal amount of Units represented by this Global Unit Certificate is $ . In accordance with the Unit Agreement pursuant to which this Global Unit Certificate has been issued, the following increases and reductions of the aggregate principal amount of Units represented by this Global Unit Certificate have occurred:
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Date of Increase/Reduction | Principal Amount as Increased/Reduced on Account of PIK Interest, Separation or Cancellation | Aggregate principal amount of Units Outstanding Following any such Increase/Reduction |
Notation Made by or on Behalf of Units Trustee |
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[FORM OF ASSIGNMENT]
FOR VALUE RECEIVED, the undersigned assigns and transfers the principal amount of Units represented by this Certificate to:
(Insert assignee’s social security or tax identification number)
(Insert address and zip code of assignee) and irrevocably appoints
agent to transfer this Unit Certificate on the books of the Corporation. The agent may substitute another to act for him or her.
Date:
Signature(s):
(Sign exactly as your name appears on the other side of this Certificate)
NOTICE: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to SEC Rule 17Ad-15
ANNEX 1
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED UNITS
This certificate relates to principal amount of Units held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned has requested the Units Trustee by written order to exchange or register the transfer of a Unit or Units.
In connection with any transfer of any of the Units evidenced by this certificate prior to the Resale Restriction Termination Date, the undersigned confirms that such Units are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)
to the Company or subsidiary thereof; or
(2)pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or
(3)to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
(4)pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act; or
(5)to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Units Trustee a signed letter containing certain representations and agreements; or
(6)pursuant to Rule 144 under the Securities Act; or
(7)pursuant to another available exemption from registration under the Securities Act.
Unless one of the boxes is checked, the Units Trustee will refuse to register any of the Units evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (4), (5), (6) or (7) is checked, the Company or the Units Trustee may require, prior to registering any such transfer of the Units, such legal opinions, certifications and other
information as the Company or the Units Trustee has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
| | |
| ______________________________ |
Your Signature |
| Date: |
| ______________________________ |
Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Unit for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
NOTICE: To be executed by
an executive officer
Name: Title:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Units Trustee).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL UNIT TO AN UNRESTRICTED GLOBAL UNIT, PURSUANT TO SECTION 2.08(d)(vii) OF THE UNIT AGREEMENT4 The undersigned represents and warrants that either:
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Units pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Unit does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Unit.
4 Include only for Regulation S Global Units.
ANNEX 2
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ] principal amount of Units of Diebold Nixdorf, Incorporated (the “Company”).
Upon transfer, the Units would be registered in the name of the new beneficial owner as follows:
Name: Address: Taxpayer ID Number:
The undersigned represents and warrants to you that:
1.We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor”, and we are acquiring the Units, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Units, and we invest in or purchase securities similar to the Units in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2.We understand that the Units have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Units to offer, sell or otherwise transfer such Units prior to the date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Units (or any predecessor thereto)
(the “Resale Restriction Termination Date”) only in accordance with the Restricted Units Legend (as such term is defined in the unit agreement under which the Units were issued) on the Units and any applicable securities laws of any state of the United States. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Units is proposed to be made prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Units Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Units for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Units Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Units with respect to applicable transfers described in the Restricted Units Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company and the Units Trustee.
TRANSFEREE: ,
by:
EXHIBIT B
TERMINATION EVENT NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Termination Events. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of a (i) Permitted Equity Issuance Prepayment (as defined in the Indenture), or (ii) refinancing (as defined in the Indenture) in connection with a Change of Control (as defined in the Indenture), in each case prior to April 1, 2024, with respect
to $[ ] aggregate principal amount of Notes, expected to occur on or about [ ], 20[ ].
IN WITNESS WHEREOF, the undersigned has executed this Termination Event Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT C-1
PROHIBITED EVENT UNIT SPLIT DATE NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Prohibited Events. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of a repayment, repurchase, redemption or other retiring of any portion of the principal amount of Notes forming a part of the Units prior to the Unit Split Date for such Unit or portion thereof (other than in connection with a Termination Event) that would constitute one or more Prohibited Events under the Unit Agreement, in each case prior to April 1, 2024, with respect to $[ ] aggregate principal amount of Notes, expected to occur on or about [ ], 20[ ].
IN WITNESS WHEREOF, the undersigned has executed this Prohibited Event Split Date Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
EXHIBIT C-2
INDENTURE DEFAULT NOTICE
[Date]
This notification is delivered to you, [U.S. Bank Trust Company, National Association], as Units Trustee under the Unit Agreement dated December [29], 2022, among Diebold Nixdorf, Incorporated (the “Company”) and [U.S. Bank Trust Company, National Association], as Units Trustee, as Trustee and Paying Agent under the Indenture referred to in the Unit Agreement, and as Warrant Agent under the Warrant Agreement referred to in the Unit Agreement, in connection with the Trustee’s obligation to notify the Units Trustee of the occurrence of certain Events of Default. Capitalized terms used and not otherwise defined herein shall have the meanings assigned thereto in the Indenture.
The undersigned Officer of the Trustee hereby certifies that the undersigned is authorized to execute this notification on behalf of the Trustee (and not in a personal capacity) and does hereby notify the Units Trustee, in the name and on behalf of the Trustee (and not in his personal capacity), of an Event of Default under the Indenture.
IN WITNESS WHEREOF, the undersigned has executed this Termination Event Notice as of the date first written above
By: Name:
Title:
cc: U.S. Bank Trust Company, National Association, as Trustee under the Indenture (as defined in the Unit Agreement)
U.S. Bank Trust Company, National Association, as Warrant Agent under the Warrant Agreement (as defined in the Unit Agreement)
Exhibit 10.2
WARRANT AGREEMENT
dated as of December 29, 2022 between
DIEBOLD NIXDORF, INCORPORATED
and
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION
as Warrant Agent
For 15,813,847 Warrants
Table of Contents
Page
This WARRANT AGREEMENT is dated as of December 29, 2022 (this “Agreement”), between DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
a national banking association, as Warrant Agent (the “Warrant Agent”). All terms used but not defined in this Agreement shall have the respective meanings assigned to them in the form of Warrant Certificate attached to this Agreement as Exhibit A.
The Company hereby issues warrants (the “Warrants”) to purchase initially an aggregate of 15,813,847 Common Shares, which Warrants shall prior to the Unit Split Date (as defined herein) form a part of units to be issued by the Company on the date hereof (the “Units”), each Unit consisting of Warrants and the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (the “Notes”) in exchange for such holders’ existing 8.50% Senior Notes due 2024 (the “Existing Notes”), pursuant to an unregistered exchange offer closing on or about the date hereof (the “Initial Exchange Offer”).
The Warrants shall be represented by one or more Warrant Certificates substantially in the forms attached hereto as Exhibit A. So long as any Warrants form a part of Units, such Warrants shall be represented by warrant certificates in definitive form deposited with the Units Trustee (the “Initial Warrant Certificates”) as provided in Section 2.01. From and after the Unit Split Date (as defined herein), Warrants that have separated as provided in the Unit Agreement (as defined herein) shall be represented by one or more Global Warrant Certificates (as defined below) as provided in Section 2.01, except as set forth in Section 2.04 or 2.05.
Each Warrant entitles the Holder thereof to receive, upon exercise thereof, a number of Common Shares determined by the provisions of the relevant Warrant Certificate and this Agreement. Each Warrant Certificate (including any Global Warrant Certificate) shall evidence such number of Warrants as is set forth therein, subject to adjustment pursuant to the provisions of the Warrant Certificate and this Agreement.
The Warrants and the Common Shares issuable upon exercise of the Warrants will only be transferable by Holders in accordance with the terms of this Agreement. The Company desires the Warrant Agent to act on behalf of the Company in connection with the registration, transfer, exchange, exercise and cancellation of the Warrants as provided in this Agreement and the Warrant Certificates, and the Warrant Agent is willing to so act.
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Warrants:
ARTICLE I DEFINITIONS
Section 1.01. Definitions.
“Affiliate” means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with, such other Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”) when used with respect to any Person, means the possession, directly or indirectly, of the power to cause the direction of management and/or policies of such Person, whether through the ownership of voting securities by contract or otherwise.
“Agent Members” means the securities brokers and dealers, banks and trust companies, clearing organizations and other similar organizations that are participants in the Depositary’s system.
“Board of Directors” means the board of directors of the Company.
“Business Day” means any day except Saturday, Sunday and any day on which banking institutions in the State of New York are authorized or required by law or other governmental actions to close.
“By-Laws” means, with respect to any Person, its by-laws, code of regulations, or similar regulations and rules established by such Person.
“Capital Stock” means (A) with respect to any Person that is a corporation or company, any and all shares, interests, participations or other equivalents (however designated) of capital or capital stock of such Person and (B) with respect to any Person that is not a corporation or company, any and all partnership or other equity interests in such Person.
“Charter” means, with respect to any Person, its certificate or articles of incorporation, articles of association, or similar organizational document.
“Common Shares” means the common shares, $1.25 par value per share, of the Company; provided that after the occurrence of a Reorganization, the term “Common Shares” shall refer to Exchange Property, as the context requires.
“Custodian” means U.S. Bank Trust Company, National Association, as custodian for the Depositary, or any successor thereto.
“Definitive Warrant” means a Warrant represented by a Definitive Warrant Certificate to the extent permitted by Section 2.04 or 2.05.
“Definitive Warrant Certificate” means a Warrant Certificate in definitive form that is not deposited with the Depositary or with the Custodian other than the Initial Warrant Certificates.
“Depositary” means The Depository Trust Company, its nominees and their respective successors.
“Distribution Compliance Period” means, with respect to any Warrant, the period of six months beginning on and including the later of (a) the day on which such Warrant is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation S, and (b) the date of issuance with respect to such Warrant or any predecessor of such Warrant.
“Exchange” means The New York Stock Exchange or, if the Common Shares are not then listed on The New York Stock Exchange, the principal U.S. national or regional securities exchange on which the Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, the principal other market on which the Common Shares are then traded.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Exchange Property” means, with respect to any Reorganization, the cash, securities or other property that the Common Shares are converted into, are exchanged for or become the right to receive, in each case, in such Reorganization.
“Exercise Date” means (i) in the case of the exercise of Global Warrants, the date on which all actions required for the such exercise in accordance with the practices and procedures of the Depositary and the relevant Agent Members are taken, and (ii) in the case of the exercise of Definitive Warrants, the date on which the Definitive Warrant Certificate representing such Warrants is surrendered to the Warrant Agent, together with a duly completed Exercise Notice (unless such surrender and delivery occur after 5:00
p.m. New York City time on a Business Day or on a date that is not a Business Day, in which event the Exercise Date shall be the next following Business Day).
“Exercise Notice” means a notice in the form attached as Annex B to the Warrant Certificate delivered by the Holder to the Warrant Agent to exercise the Warrant.
“Exercise Period” means, with respect to any Warrant, the period commencing on, and including, April 1, 2024 and continuing up to, and including, the Expiration Time.
“Exercise Price” means the per Share exercise price of the Warrants, as set forth in Section 3.01(b).
“Expiration Time” means 5:00 p.m. New York City time on December 29, 2027 or, if such day is not a Business Day, the next succeeding day that is a Business Day.
“Fair Market Value” means, with respect to any date of determination,:
(i)with respect to the Common Shares:
(a)if the Common Shares are listed on a Principal Exchange on the day as of which Fair Market Value is being determined, the per share volume- weighted average price as displayed under the heading “Bloomberg
VWAP” on Bloomberg page “DBD <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on the applicable Trading Day (or if such volume-weighted average price is unavailable, the market value of one Common Share on such Trading Day determined, using a volume- weighted average method, by the Valuation Bank); provided that in all cases, such volume-weighted average price shall be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours; or
(b)if the Common Shares are not listed on a Principal Exchange on the day as of which Fair Market Value is being determined, but are listed on any other Exchange, the per share volume-weighted average price of such Common Shares on such Exchange, as reported by such Exchange, or, if not so reported, a service reporting such information as shall be selected by the Company; or
(c)if the Common Shares are not traded on an Exchange on the day as of which Fair Market Value is being determined but are traded on an Over-the-Counter Market, the average of the high bid price and the low ask price for the Common Shares on such day in such Over-the- Counter Market, as reported by such Over-the-Counter Market or, if not so reported, a service reporting such information as shall be selected by the Company; or
(d)in the case of securities not covered by clauses (w) through (y) above, the Fair Market Value of such securities shall be determined in good faith and a commercially reasonable manner by the Valuation Bank, using one or more valuation methods that the Valuation Bank in its best professional judgment determines to be most appropriate, assuming such securities are fully distributed and are to be sold in an arm’s-length transaction and there was no compulsion on the part of any party to such sale to buy or sell and taking into account all factors deemed relevant by the Valuation Bank;
provided that, with respect to any determination of Fair Market Value pursuant to clauses (w) through (y) above, the Company, in its good faith determination, shall make appropriate adjustments to the per share volume- weighted average price, or bid and ask stock price, to account for any stock split, reverse stock split, dividend, distribution or other event requiring any adjustments to the Warrant Share Number, so as to provide for a consistent determination of Fair Market Value over any period of Trading Days as may be specified in this Agreement;
(ii)in the case of cash, the amount thereof (or its U.S. dollar equivalent determined in good faith and in a commercially reasonable manner by the Board of
Directors or a committee of members of the Board of Directors to whom the Board of Directors expressly delegates authority to make determinations of Fair Market Value hereunder); and
(iii)in the case of other property, the Fair Market Value of such property shall be determined in good faith and in a commercially reasonable manner by the Board of Directors or a committee of members of the Board of Directors to whom the Board of Directors expressly delegates authority to make determinations of Fair Market Value hereunder.
“Global Warrant” means a Warrant represented by a Global Warrant Certificate.
The Rule 144A Global Warrant, the IAI Global Warrant, the Regulation S Global Warrant and any Unrestricted Global Warrant are each referred to herein as a “Global Warrant” and are collectively referred to herein as “Global Warrants.”
“Global Warrant Certificate” means a global Warrant Certificate in definitive form, with the global legend set forth in the form of Warrant Certificate attached as Exhibit A hereto, which is deposited with the Depositary or with the Custodian.
“Holder” means a registered owner of Warrants as set forth in the Registry. “IAI” means an institution that is an “accredited investor” as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act and is not a QIB.
“Market Disruption Event” means (i) a failure by the Exchange to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00
p.m. New York City time on any day on which the Exchange is open for trading for more than one half-hour period in the aggregate during regular trading hours of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the Exchange or otherwise) in the Common Shares or in any options contracts or futures contracts relating to the Common Shares.
“Net Settlement” means the settlement method pursuant to which an exercising Holder shall be entitled to receive from the Company, for each Warrant exercised, a number of Common Shares determined in accordance with Section 3.03 without any payment therefor.
“Officer” means the Chairman of the Board of Directors, Chief Executive Officer, the President or a Co-President, the Chief Financial Officer, any Executive Vice- President, Senior Vice President or Vice President, the Chief Administrative Officer, the Chief Legal Officer, the Treasurer, any Assistant Treasurer or the Secretary of the Company or any other person authorized by the Board of Directors.
“Officer’s Certificate” means a certificate signed by any Officer. “Opinion of Counsel” means a written opinion from legal counsel who is
acceptable to the Warrant Agent, in its reasonable discretion. Such counsel may be an employee of or counsel to the Company.
“Over-the-Counter Market” means OTCQX or OTCQB of OTC Markets and the Over-the-Counter Bulletin Board of Financial Industry Regulatory Authority (or any of their respective successors).
“Person” means an individual, corporation, partnership, joint venture, association, joint-stock company, limited liability company, limited liability partnership, trust, unincorporated organization, or government or any agency or political subdivision thereof or any other entity.
“Principal Exchange” means each of the following Exchanges: The New York Stock Exchange, NYSE American, The Nasdaq Global Market and The Nasdaq Global Select Market (or any of their respective successors).
“QIB” means a “qualified institutional buyer” as defined in Rule 144A. “Regulation S” means Regulation S promulgated under the Securities Act. “Reorganization” means any consolidation, merger, statutory share exchange,
business combination or similar transaction with a Person, any sale, lease or other transfer to a Person of all or substantially all of the consolidated assets of the Company and its Subsidiaries substantially as an entirety, or any recapitalization, reclassification or transaction that results in a change of the Common Shares (other than as described in Section 4.01(a)), in each case, in which the Common Shares are converted into, are exchanged for or become the right to receive Exchange Property.
“Rule 144” means Rule 144 promulgated under the Securities Act. “Rule 144A” means Rule 144A promulgated under the Securities Act.
“SEC Registered Exchange Offer” means that certain proposed exchange offer to be registered with the Securities and Exchange Commission (the “SEC”) that is expected to be consummated by the Company prior to June 30, 2023, pursuant to which holders of the Existing Notes who did not or who were not eligible to participate in the Initial Exchange Offer may tender and exchange their Existing Notes for Units.
“Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.
“Shares” means fully paid and nonassessable Common Shares issuable from treasury to a Holder upon exercise of a Warrant.
“Subsidiary” means, with respect to any Person, any corporation, partnership, joint venture, limited liability company or other entity (x) of which such Person or a subsidiary of such Person is a general partner or (y) of which a majority of the voting securities or other voting interests, or a majority of the securities or other interests of which having by their terms ordinary voting power to elect a majority of the board of directors or persons performing similar functions with respect to such entity, is directly or indirectly owned by such Person and/or one or more subsidiaries thereof.
“Trading Day” means a day on which (i) no Market Disruption Event occurs and
(ii) trading in the Common Shares occurs on the Exchange; provided that if the Common Shares are not so listed or traded, “Trading Day” means a Business Day.
“Transfer Agent” means EQ Shareowner Services, as transfer agent of the Common Shares, and any successor transfer agent.
“Transfer Restricted Warrant” means any Warrant that bears or is required to bear the Restricted Warrants Legend.
“Unit Agreement” means the unit agreement, dated the date hereof, between the Company and the Units Trustee, relating to the Units.
“Unit of Exchange Property” means, with respect to any Reorganization, the type and amount of Exchange Property that the holder of one Common Share is entitled to receive in such Reorganization.
“Unit Split Date” means April 1, 2024; provided that, with respect to any Warrant, if the Unit of which such Warrant has theretofore formed a part has separated prior to such date as provided in Article III of the Unit Agreement, the Unit Split Date for such Warrant shall be the day of such separation as provided in the Unit Agreement (or, if such day is not a Business Day, the next succeeding Business Day).
“Units Trustee” means U.S. Bank Trust Company, National Association, as units trustee under the Unit Agreement, until a successor Units Trustee shall have become such Person pursuant to the applicable provisions of the Unit Agreement, and thereafter “Units Trustee” shall mean such successor Person.
“Unrestricted Global Warrant” means any Warrant in global form that does not bear or is not required to bear the Restricted Warrants Legend.
“U.S. person” means a “U.S. person” as defined in Regulation S.
“Valuation Bank” means an independent, nationally recognized investment bank selected by the Company.
“Warrant” has the meaning stated in the recitals of this Agreement and shall refer to (i) any Warrant issued under this Agreement on the date hereof as part of Units issued under the Unit Agreement on the date hereof in connection with the Initial Exchange Offer, and (ii) any Warrant issued under this Agreement after the date of this Agreement in exchange for or substitution of any Warrant described in clause (i) above (including, without limitation, upon any reallocation of any Warrants issued as part of Units under the Unit Agreement in connection with the Initial Exchange Offer or as part of Units issued under the Unit Agreement in connection with the SEC Registered Exchange Offer).
“Warrant Agent” means the Person named as the “Warrant Agent” in the recitals of this Agreement until a successor Warrant Agent shall have become such Person
pursuant to the applicable provisions of this Agreement, and thereafter “Warrant Agent” shall mean such successor Person.
“Warrant Certificate” means any registered certificate issued by the Company and countersigned by the Warrant Agent under this Agreement evidencing Warrants, which shall be the Initial Warrant Certificates and the Global Warrant Certificates in the forms attached as Exhibit A hereto except as set forth in Section 2.04 or 2.05.
“Warrant Share Number” means the number of Shares for which one Warrant is exercisable, as adjusted from time to time pursuant to the terms of this Agreement, which number initially shall be as set forth in Section 3.01(c); provided that following a Reorganization, the Warrant Shares Number shall mean the number of Units of Exchange Property with respect to such Reorganization for which one Warrant is exercisable.
Section 1.02. Other Definitions.
| | | | | |
| Term | Defined in Section |
| “Agreement” | Recitals |
“Attached Warrants” | 2.01(a)(i) |
| “Company” | Recitals |
“Customer Identification Program” | 6.10 |
“Definitive Warrants Legend | 2.04(c) |
“Existing Notes” | Recitals |
“IAI Global Warrant” | 2.01(b) |
“Initial Exchange Offer” | Recitals |
“Initial Warrant Certificate” “Loss” or “Losses” | Recitals 5.05(b) |
| “Notes” | Recitals |
“NY UCC” | 2.06 |
| “Registry” | 2.03(a) |
“Regulation S Global Warrant” | 2.01(b) |
“Resale Registration Statement” | 3.06(e) |
“Restricted Warrants Legend” | 2.04(c) |
“Rule 144A Global Warrant” | 2.01(b) |
“Separated Warrants” | 2.01(a)(iii) |
“Spin-Off” | 4.01(c) |
| “Units” | Recitals |
“Valuation Period” | 4.01(c) |
“Warrant Agent Insolvency Event” | 5.06(c) |
Section 1.03. Rules of Construction. Unless the text otherwise requires:
a defined term has the meaning assigned to it;
an accounting term not otherwise defined has the meaning assigned to it in accordance with United States generally accepted accounting principles as in effect on the date hereof;
any definition or reference to formation documents, governing documents, agreements and other contractual documents or instruments shall be deemed to include all subsequent amendments, restatements, extensions, supplements and other modifications thereto, but only to the extent that such amendments, restatements, extensions, supplements and other modifications would not violate this Agreement;
“or” is not exclusive;
“including” means including, without limitation; and
words in the singular include the plural and words in the plural include the singular.
ARTICLE II WARRANTS
Section 2.01. Form.
Initial Warrant Certificates.
(i)Upon execution and delivery of this Agreement, the Warrants forming part of Units (the “Attached Warrants”) shall be issued in definitive form and evidenced by Initial Warrant Certificates deposited on behalf of the Company with the Units Trustee, as custodian for the beneficial owners, duly executed by the Company and countersigned by the Warrant Agent as provided herein, initially in the form of (1) one or more Initial Warrant Certificates representing Warrants offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act, (2) one or more Initial Warrant Certificates representing Warrants offered and sold by the Company to Persons other than
U.S. persons in reliance on Regulation S, and (3) one or more Initial Warrant Certificates representing Warrants offered and sold to QIBs in reliance on Section 4(a)(2) of the Securities Act.
(ii)Upon the consummation of the SEC Registered Exchange Offer, the Company shall deposit with the Units Trustee, as custodian for the beneficial owners, Initial Warrant Certificates duly executed by the Company and countersigned by the Warrant Agent as provided herein, representing Attached Warrants that are freely transferable for U.S. securities law purposes, initially including Attached Warrants forming part of Units offered and sold by the Company in the SEC Registered Exchange Offer, with Annex A of such Initial Warrant Certificates initially reflecting their representation of a number of Warrants equal to the Unit Warrant Number (as defined in the Unit Agreement) corresponding to the aggregate principal amount of Units issued in the SEC
Registered Exchange Offer. At such time, the Warrant Agent shall reflect on its Registry, and on Annex A to the relevant Initial Warrant Certificates, corresponding decreases in the number of Attached Warrants represented by the other Initial Warrant Certificates based on the Unit Warrant Number (as defined in the Unit Agreement) represented by the principal amount of Units (including any PIK Interest, as defined in the Unit Agreement, if applicable) having the relevant transfer restricted status for each such Initial Warrant Certificate after giving effect to the SEC Registered Exchange Offer, with no delivery of additional instruments, certifications or legal opinions required under this Agreement or the Warrant Certificates.
(iii)The Attached Warrants shall remain in the form of Initial Warrant Certificates until such Warrants become separable on the relevant Unit Split Date as provided in the Unit Agreement (thereinafter, “Separated Warrants”), at which time the number of Warrants represented by the relevant Initial Warrant Certificate as set forth in Annex A thereto shall be decreased to reflect the increase in the number of Separated Warrants represented by Global Warrant Certificates as provided in Annex A thereto.
Global Warrants. From and after the Unit Split Date, except as provided in Section 2.04 or 2.05, Separated Warrants, including Separated Warrants issued upon any transfer or exchange thereof, shall be issued in the form of one or more Global Warrant Certificates, which shall be deposited on behalf of the Company with the Depositary (or, at the direction of the Depositary, with the Custodian or such other custodian as the Depositary may direct), and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company and countersigned by the Warrant Agent as hereinafter provided.
Upon the execution and delivery of this Agreement, the Company shall issue and execute Global Warrant Certificates, initially representing no Separated Warrants, in the form of (1) one or more Global Warrant Certificates representing Warrants offered and sold by the Company to IAIs in reliance on Section 4(a)(2) of the Securities Act (collectively, the “IAI Global Warrant”), (2) one or more Global Warrant Certificates representing Warrants offered and sold by the Company to Persons other than U.S. persons in reliance on Regulation S (collectively, the “Regulation S Global Warrant”), and (3) one or more Global Warrant Certificates representing beneficial interests in Warrants that may be transferred to QIBs subsequent to the initial distribution (collectively, the “Rule 144A Global Warrant”). From and after the Unit Split Date, the Warrant Agent shall increase the number of Separated Warrants represented by the Global Warrant Certificates as provided in Annex A thereto.
Except as provided in Section 2.04 or 2.05, owners of beneficial interests in Global Warrants will not be entitled to receive physical delivery of Definitive Warrants.
Book-Entry Provisions. This Section 2.01(c) shall apply only to a Global Warrant deposited with, at the direction of or on behalf of the Depositary.
(i)The Company shall execute and the Warrant Agent shall, in accordance with Section 2.02, countersign, either by manual or facsimile or other electronically transmitted signature, and deliver one or more Global Warrants that
(A) shall be registered in the name of the Depositary or the nominee of the Depositary and (B) shall be delivered by the Warrant Agent to the Depositary or pursuant to the Depositary’s instructions or held by the Custodian. Each Global Warrant shall be dated the date of its countersignature by the Warrant Agent.
(ii)Agent Members shall have no rights under this Agreement with respect to any Global Warrant held on their behalf by the Depositary or by the Warrant Agent as the custodian of the Depositary or under such Global Warrant except to the extent set forth herein or in a Warrant Certificate, and the Depositary may be treated by the Company, the Warrant Agent and any agent of the Company or the Warrant Agent as the absolute owner of such Global Warrant for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the Warrant Agent or any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary or (B) impair, as between the Depositary and the Agent Members, the operation of customary practices of the Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Warrant. The rights of beneficial owners in a Global Warrant shall be exercised through the Depositary subject to the applicable procedures of the Depositary, except to the extent set forth herein or in a Warrant Certificate.
Warrant Certificates. Warrant Certificates shall be in substantially the form attached as Exhibit A hereto and shall be typed, printed, lithographed or engraved or produced by any combination of such methods or produced in any other manner permitted by the rules of any securities exchange on which the Warrants may be listed, all as determined by the Officer or Officers executing such Warrant Certificates, as evidenced by their execution thereof. Any Warrant Certificate shall have such insertions as are appropriate or required by this Agreement and may have such letters, numbers or other marks of identification and such legends or endorsements, stamped, printed, lithographed or engraved thereon, (i) as the Company may deem appropriate and as are not inconsistent with the provisions of this Agreement (and which letters, numbers, marks of identification, legends or endorsements do not affect the rights, duties, immunities or obligations of the Warrant Agent), (ii) as may be required to comply with this Agreement, any applicable law or any rule of any securities exchange on which the Warrants may be listed, or (iii) as may be necessary to conform to customary usage.
Section 2.02. Execution and Countersignature.
Execution by the Company. At least one Officer shall sign the Warrant Certificates for the Company by manual or facsimile or other electronically transmitted signature. If an Officer whose signature is on a Warrant Certificate no longer holds that office at the time the Warrant Agent countersigns the Warrant Certificate, the Warrants evidenced by such Warrant Certificate shall be valid nevertheless.
Countersignature by the Warrant Agent. Upon the execution and delivery of this Agreement, and the receipt of one or more Warrant Certificates signed by at least one Officer and a written order for countersignature of such Warrant Certificates, the Warrant Agent shall countersign, either by manual or facsimile or other electronically transmitted signature, and deliver Warrant Certificates evidencing, in the aggregate, 15,813,847 Warrants. Each Warrant Certificate shall be dated the date of its countersignature by the Warrant Agent.
Subsequent Issue of Warrant Certificates. At any time and from time to time after the execution of this Agreement, the Warrant Agent shall upon receipt of a written order of the Company signed by an Officer countersign, by either manual or facsimile or other electronically transmitted signature, and issue a Warrant Certificate evidencing the number of Warrants specified in such order; provided, that if any such additional Warrants are not fungible with the Warrants initially issued hereunder for U.S. federal securities law purposes, such additional Warrants shall have one or more separate CUSIP numbers. The written order of the Company shall specify the number of Warrants to be evidenced on the Warrant Certificate to be countersigned, the date on which such Warrant Certificate is to be countersigned and the number of Warrants then authorized. Each Warrant Certificate shall be dated the date of its countersignature by the Warrant Agent.
Validity of Warrant Certificates. The Warrants evidenced by a Warrant Certificate shall not be valid until an authorized signatory of the Warrant Agent countersigns the Warrant Certificate either manually or by facsimile or other electronically transmitted signature. Such signature shall be conclusive evidence that the Warrant Certificate so countersigned has been duly issued under this Agreement. Countersigned Warrant Certificates may be delivered, notwithstanding the fact that the persons or any one of them who countersigned the Warrants shall have ceased to be proper signatories prior to the delivery of such Warrants or were not proper signatories on the date of this Agreement.
Section 2.03. Registry.
Registration Generally. The Warrants shall be issued in registered form only. The Warrant Agent shall keep a registry (the “Registry”) of the Warrant Certificates and of their transfer and exchange. The Registry shall show the names and addresses of the respective Holders and the date and number of Warrants evidenced on the face of each of the Warrant Certificates, and record all exchanges, exercise, cancellation and transfers of the Warrants. Any Warrant Certificate may be surrendered for transfer, cancellation, exchange or exercise, in accordance with its terms, at the office of the Warrant Agent designated for such purpose. The Company and the Warrant Agent may deem and treat any Person in whose name a Warrant Certificate is registered in the Registry as the absolute owner of such Warrant Certificate for all purposes whatsoever and neither the Company nor the Warrant Agent shall be affected by notice to the contrary.
Registration of Global Warrants. The Holder of any Global Warrant will be the Depositary or a nominee of the Depositary in whose name such Global Warrant is registered. The Warrant holdings of Agent Members will be recorded on the books of the Depositary. The beneficial interests in any Global Warrant held by customers of Agent Members will be reflected on the books and records of such Agent Members, and neither the Warrant Agent, the Company nor the Depositary shall be responsible for recording such beneficial interests or their exchange exercise, cancellation of transfer.
Section 2.04. Transfer and Exchange.
Generally. Subject to compliance with applicable securities laws and the requirements set forth in this Agreement, each Warrant Certificate and all rights thereunder are transferable, in whole or in part, upon the books of the Company (or an agent duly appointed by the Company) by the Holder thereof in person or by duly authorized attorney, and one or more new Warrant Certificates shall be made and delivered by the Company, of the same tenor and date as the applicable Warrant Certificate so delivered but registered in the name of one or more transferees, upon surrender of such Warrant Certificate, duly endorsed, to the Warrant Agent. All expenses and other charges payable in connection with the preparation, execution and delivery of the new Warrant Certificate pursuant to this Section 2.04(a) shall be paid by the Company, except the Holder of the old Warrant Certificate surrendered for transfer shall pay to the Company a sum sufficient to cover any documentary, stamp or similar issue or transfer tax due because the name of the Holder of the new Warrant Certificate issued upon such transfer is different from the name of the Holder of the old Warrant Certificate surrendered for transfer.
Transfer and Exchange of Attached Warrants, Global Warrants; Restrictions on Transfer of Attached Warrants, Global Warrants.
(i)In the case of a Global Warrant Certificate or an Initial Warrant Certificate, so long as such Warrant Certificate is registered in the name of the Depositary or the Custodian (in the case of a Global Warrant Certificate) or the Units Trustee (in the case of an Initial Warrant Certificate), (a) the holders of beneficial interests in the Warrants evidenced thereby shall have no rights under the Warrant Certificate with respect to such Warrants held on their behalf by the Depositary, the Custodian or the Units Trustee, as the case may be, and (b) the Depositary or Units Trustee, as the case may be, may be treated by the Company, the Warrant Agent and any agent of the Company or the Warrant Agent as the absolute owner of such Warrants for all purposes whatsoever, except, in each case, to the extent set forth herein. Accordingly, any such owner’s beneficial interest in the Global Warrants and Attached Warrants will be shown only on, and the transfer of such interest shall be effected only through, records maintained by the Depositary or the Agent Members (in the case of Global Warrants) or by the Units Trustee (in the case of the Attached Warrants), and neither the Company nor the Warrant Agent shall have any responsibility with respect to such records maintained by the Depositary or the Agent Members. Notwithstanding the foregoing, nothing herein shall (i) prevent the Company, the Warrant Agent or
any agent of the Company or the Warrant Agent from giving effect to any written certification, proxy or other authorization furnished by the Depositary (in the case of any Global Warrants) or by the Units Trustee (in the case of any Attached Warrants) or (ii) impair, as between the Depositary and the Agent Members, the operation of customary practices governing the exercise of the rights of a holder of a beneficial interest in any Global Warrant. Except as otherwise may be provided in this Agreement, the rights of beneficial owners in a Global Warrant shall be exercised through the Depositary subject to the applicable procedures of the Depositary. Any holder of any Global Warrant shall, by acceptance of such Global Warrant, agree that (x) ownership of a beneficial interest in the Warrants represented thereby shall be required to be reflected in book-entry form and (y) the transfer and exchange of Global Warrants or beneficial interests therein shall be effected through the book-entry system maintained by the Depositary, in accordance with this Agreement and the Warrant Certificates and the procedures of the Depositary therefor.
(ii)If the proposed transfer is a transfer of a beneficial interest in one Global Warrant to a beneficial interest in another Global Warrant, subject to compliance with the applicable provisions of this Agreement, the Warrant Agent shall reflect on its Registry the date and an increase in the amount of the Global Warrant to which such interest is being transferred in an amount equal to the amount of the interest to be so transferred, and the Warrant Agent shall reflect on its Registry the date and a corresponding decrease in the amount of the Global Warrant from which such interest is being transferred. If the proposed transfer is a transfer of a beneficial interest in one Attached Warrant to a beneficial interest in another Attached Warrant, subject to compliance with the applicable provisions of this Agreement, the Warrant Agent shall reflect on its Registry the date and an increase in the amount of the Attached Warrant to which such interest is being transferred in an amount equal to the amount of the interest to be so transferred, and the Warrant Agent shall reflect on its Registry the date and a corresponding decrease in the amount of the Attached Warrant from which such interest is being transferred.
(iii)Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 2.05), a Global Warrant may only be transferred as a whole, and not in part, and only by (A) the Depositary, to a nominee of the Depositary, (B) a nominee of the Depositary, to the Depositary or another nominee of the Depositary, or (C) the Depositary or any such nominee to a successor Depositary or its nominee. Notwithstanding any other provisions of this Agreement (other than the provisions set forth in Section 2.05), an Attached Warrant may only be transferred as a whole, and not in part, and only by the Units Trustee to successor Person assuming the obligations of the Units Trustee in accordance with the Unit Agreement.
(iv)In the event that a Global Warrant is exchanged for Definitive Warrants pursuant to Section 2.05, such Warrants may be exchanged only in accordance with the provisions of this Section 2.04 and Section 2.05 and such
other procedures as may from time to time be adopted by the Company that are not inconsistent with the terms of this Agreement or of any Warrant Certificate.
(v)With respect to Global Warrants:
(A)Transfers by an owner of a beneficial interest in a Rule 144A Global Warrant or an IAI Global Warrant to a transferee who takes delivery of such interest through another Transfer Restricted Warrant shall be made in accordance with the applicable procedures of the Depositary and the Restricted Warrants Legend and only upon receipt by the Warrant Agent of a written certification from the transferor in the form attached as Annex D to the Warrant Certificate for exchange or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest in either a Regulation S Global Warrant or a Rule 144A Global Warrant for an interest in an IAI Global Warrant, the transferee must furnish a signed letter substantially in the form attached as Annex E to the Warrant Certificate to the Warrant Agent.
(B)During the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Warrant may only be sold, pledged or transferred in accordance with the applicable procedures of the Depositary, the Restricted Warrants Legend on such Regulation S Global Warrant and any applicable securities laws of any state of the U.S. Prior to the expiration of the Distribution Compliance Period, transfers by an owner of a beneficial interest in the Regulation S Global Warrant to a transferee who takes delivery of such interest through a Rule 144A Global Warrant or an IAI Global Warrant shall be made only in accordance with the applicable procedures of the Depositary and the Restricted Warrants Legend and upon receipt by the Warrant Agent of a written certification from the transferor of the beneficial interest in the form attached as Annex D to the Warrant Certificate for exchange or registration of transfers. Such written certification shall no longer be required after the expiration of the Distribution Compliance Period.
Upon the expiration of the Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Warrant shall be transferable in accordance with applicable law and the other terms of the Warrant Agreement.
(C)Upon the expiration of the Distribution Compliance Period, beneficial interests in the Regulation S Global Warrant may be exchanged for beneficial interests in an Unrestricted Global Warrant upon certification in the form attached as Annex D to the Warrant Certificate for an exchange from a Regulation S Global Warrant to an Unrestricted Global Warrant.
(D)Beneficial interests in a Transfer Restricted Warrant that is a Rule 144A Global Warrant or an IAI Global Warrant may be exchanged for beneficial interests in an Unrestricted Global Warrant if the Holder certifies in writing to the Warrant Agent that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth in Annex D attached to the Warrant Certificate) and/or upon delivery of such legal opinions, certifications and other information as the Company or the Warrant Agent may reasonably request.
(vi)Notwithstanding anything to the contrary herein or in the Unit Agreement, with respect to Attached Warrants:
(E)upon any transfer of a beneficial interest in one Unit Certificate (as defined in the Unit Agreement) to a beneficial interest in another Unit Certificate in compliance with the applicable provisions of the Unit Agreement and the Units, the Warrant Agent shall reflect on its Registry a corresponding transfer of beneficial interests in a number of Attached Warrants equal to the Unit Warrant Number (as defined in the Unit Agreement) represented by the principal amount of Units (including any PIK Interest, as defined in the Unit Agreement, if applicable) so transferred, with the Initial Warrant Certificates subject to such transfer having the same transfer restricted statuses as the relevant Units, in the manner contemplated in Section 2.04(b)(ii) above with no delivery of additional instruments, certifications or legal opinions required under this Agreement or the Warrant Certificates; and
(F)if the applicable Unit Split Date is on or after the Resale Restriction Termination Date, the Warrants delivered upon such separation shall be in the form of Unrestricted Global Warrants. The Company shall promptly notify the Warrant Agent in writing upon the occurrence of the Resale Restriction Termination Date.
(vii)If no Unrestricted Global Warrant is outstanding at the time of a transfer contemplated by the preceding clauses (v)(C), (v)(D) or (vi)(B), as the case may be, the Company shall issue and the Warrant Agent shall countersign, upon a written order for countersignature of such Unrestricted Global Warrant, a new Unrestricted Global Warrant representing the appropriate number of Warrants.
Restricted Warrants Legends. Except as permitted by Section 2.04(b), and Section 2.05, each Warrant Certificate evidencing the Global Warrants, the Attached Warrants and the Definitive Warrants (and all Warrants issued in exchange therefor or in substitution thereof) shall bear a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only) (“Restricted Warrants Legend”):
THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF 144A OR IAI WARRANTS: ONE YEAR AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT][IN THE CASE OF REGULATION S WARRANTS: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2),
(3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE WARRANT AGENT’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S WARRANTS: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S.
PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT, AND THIS SECURITY MAY NOT BE EXERCISED BY OR ON BEHALF OF A U.S. PERSON UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.]
Each Definitive Warrant that is a Transfer Restricted Warrant shall bear the following additional legend (“Definitive Warrants Legend”):
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE WARRANT AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS THE WARRANT AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Cancellation or Adjustment of Global Warrants, Attached Warrants. At such time as all beneficial interests in a Global Warrant have been exchanged for Definitive Warrants, repurchased, exercised or canceled, or all beneficial interests in an Attached Warrant have been exchanged for Global Warrants, repurchased or canceled, then such Global Warrant or Attached Warrant, as the case may be, shall be returned by the Depositary for cancellation or retained and canceled by the Warrant Agent. At any time prior to such cancellation, if any beneficial interest in a Global Warrant or an Attached Warrant is exchanged (including, without limitation, for Definitive Warrants (in the case of Global Warrants) or for Global Warrants (in the case of Attached Warrants that become Separated Warrants)), repurchased, exercised or canceled, the number of Warrants represented by such Global Warrant or such Attached Warrant, as the case may be, shall be reduced and the Warrant Agent shall make an adjustment on its books and records to reflect such reduction; provided that, in the case of an adjustment on account of an exercise of Warrants, the Warrant Agent shall have no duty or obligation to make such adjustment until it has received notice from the Holder of the amount thereof.
Obligations with Respect to Transfers and Exchanges of Warrants.
(i)To permit registrations of transfers and exchanges, the Company shall execute and the Warrant Agent shall, upon the relevant Holder’s delivery to the Warrant Agent of the applicable Warrant Certificate to be transferred in whole or in part and satisfaction of the other requirements for such transfer as set forth herein, countersign, either by manual or facsimile or other electronically transmitted signature, new Global Warrants and Definitive Warrants as required pursuant to the provisions of Section 2.02 and this Section 2.04. In addition, a transferor of a Global Warrant or a Definitive Warrant shall deliver to the Warrant Agent a written instruction of transfer in the form attached to the Warrant Certificate as Annex C, duly executed by the Holder thereof or by its attorney, duly authorized in writing. Additionally, prior to registration of any transfer or
exchange of a Warrant, the requirements for the Warrant issued upon such transfer or exchange to be issued in a name other than the Holder shall be met. Such requirements include, inter alia, a signature guarantee from an eligible guarantor institution participating in a signature guarantee program approved by the Securities Transfer Association (at a guarantee level reasonably acceptable to the Company’s transfer agent), and any other reasonable evidence of authority that may be required by the Warrant Agent. Upon satisfaction of the conditions in this clause (i), the Warrant Agent shall, in accordance with such instructions, register the transfer or exchange of the relevant Warrant.
(ii)No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require payment from a Holder of a sum sufficient to cover any transfer tax, assessments or similar governmental charge payable in connection therewith as set forth in Section 2.04(a). The Warrant Agent shall have no duty or obligation pursuant to any Section of this Agreement requiring the payment of taxes, assessments, and/or governmental charges, unless and until the Warrant Agent is satisfied that all such taxes, assessments, and/or governmental charges have been paid.
(iii)Each Warrant Certificate shall be exchangeable, upon the surrender thereof by the Holder to the Warrant Agent, for a new Warrant Certificate or Warrant Certificates of like tenor and representing the same aggregate number of Warrants.
(iv)All Warrants issued upon any transfer or exchange pursuant to the terms of this Agreement shall be the valid obligations of the Company, entitled to the same benefits under this Agreement as the Warrants surrendered upon such transfer or exchange.
No Obligation of the Warrant Agent.
(i)The Warrant Agent shall have no responsibility or obligation to any owner of a beneficial interest in a Global Warrant, any Agent Member or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any beneficial ownership interest in the Warrants represented by such Global Warrant or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than the Depositary) of any notice or the payment of any amount, under or with respect to such Warrants. All notices and communications to be given to the Holders and all payments to be made to Holders under the Warrants shall be given or made only to or upon the order of the Holders (which shall be the Depositary or its nominee in the case of a Global Warrant). Except as set forth herein, the rights of owners of beneficial interests in any Global Warrant shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Warrant Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its members, participants and any beneficial owners.
(ii)The Warrant Agent shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Agreement or under applicable law with respect to any transfer of any interest in any Warrant (including any transfer between or among the Agent Members or beneficial owners in any Global Warrant) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Agreement and the Warrant Certificate, and to examine the same to determine substantial compliance as to form with the express requirements hereof and thereof.
Section 2.05. Definitive Warrants.
Issuance of Definitive Warrants. Beneficial interests in a Global Warrant deposited with the Depositary or with the Custodian pursuant to Section 2.01 shall be transferred to each beneficial owner thereof in the form of Definitive Warrants evidencing a number of Warrants equivalent to such owner’s beneficial interest in such Global Warrant, in exchange for such Global Warrant, only if such transfer complies with Section 2.04 and (i) the Depositary notifies the Company in writing that it is unwilling or unable to continue as Depositary for such beneficial interests represented by such Global Warrant or if at any time the Depositary ceases to be a “clearing agency” registered under the Exchange Act and, in each such case, a successor Depositary is not appointed by the Company within 90 days of such notice, or (ii) a default by the Company under this Agreement or the Warrants has occurred and is continuing and the Warrant Agent has received a request from the Depositary.
Surrender of Global Warrants and Exchange for Definitive Warrants. A Global Warrant shall be exchanged for Definitive Warrants, and Definitive Warrants may be transferred or exchanged for a beneficial interest in a Global Warrant, only at such times and in the manner specified in this Agreement. If beneficial ownership interests in a Global Warrant are to be exchanged for Definitive Warrants pursuant to this Section 2.05, appropriate adjustment shall be made to the Global Warrant as provided in Section 2.04(d), and the Warrant Agent shall countersign, either by manual or facsimile or other electronically transmitted signature, and deliver to each beneficial owner of such interests in the name of such beneficial owner, Definitive Warrants evidencing a number of Warrants equivalent to such beneficial owner’s beneficial interest in the Global Warrant. The Warrant Agent shall register such exchange in the Registry, and if the entire Global Warrant has been exchanged for Definitive Warrants the surrendered Global Warrant shall be canceled by the Warrant Agent.
Validity of Definitive Warrants. All Definitive Warrants issued upon exchange pursuant to this Section 2.05 shall be the valid obligations of the Company, evidencing the same obligations of the Company and entitled to the same benefits under this Agreement as the Global Warrant, or portion thereof, surrendered upon such exchange.
Sale or Transfer. Upon any sale or transfer of a Transfer Restricted Warrant that is a Definitive Warrant, the Warrant Agent shall permit the Holder thereof to exchange such Transfer Restricted Warrant for a Definitive Warrant that does not bear the Restricted Warrants Legend and the Definitive Warrants Legend and rescind any restriction on the transfer of such Transfer Restricted Warrant if the Holder certifies in writing to the Warrant Agent that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be in the form attached as Annex D to the Warrant Certificate) and provides such legal opinions, certifications and other information as the Company or the Warrant Agent may reasonably request.
Definitive Warrant Certificates. In the event of the occurrence of any of the events specified in Section 2.05(a), the Company will promptly make available to the Warrant Agent a reasonable supply of Definitive Warrants in definitive, fully registered form.
(e) No Liability. Neither the Company nor the Warrant Agent will be liable or responsible for any registration or transfer of any Warrants that are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary.
Section 2.06. Replacement Certificates.
If a mutilated Warrant Certificate is surrendered to the Warrant Agent or if the Holder of a Warrant Certificate provides evidence reasonably satisfactory to the Company and the Warrant Agent that the Warrant Certificate has been lost, destroyed or wrongfully taken, the Company shall issue and the Warrant Agent shall countersign, by either manual or facsimile or other electronically transmitted signature, a replacement Warrant Certificate of like tenor and representing an equivalent number of Warrants, if the reasonable requirements of the Warrant Agent and Section 8-405 of the Uniform Commercial Code as in effect in the State of New York (the “NY UCC”) are met. In the case of the Warrant Certificate that is lost, destroyed or wrongfully taken, if required by the Warrant Agent or the Company, such Holder shall furnish an indemnity sufficient in the judgment of the Company and the Warrant Agent to protect the Company and the Warrant Agent from any loss that either of them may suffer if a Warrant Certificate is replaced. The Company and the Warrant Agent may charge the Holder for their reasonable, out-of-pocket expenses in replacing a Warrant Certificate prior to issuing and delivering a replacement Warrant Certificate to such Holder. Every replacement Warrant Certificate (i) shall evidence an additional obligation of the Company and (ii) shall be entitled to the same benefits of this Agreement equally and proportionately with any and all other Warrant Certificates. If a Warrant Certificate is replaced pursuant to this Section 2.06, the Warrants evidenced thereby shall cease to be outstanding, unless the Warrant Agent and the Company receive proof satisfactory to them that the replaced Warrant Certificate is held by a protected purchaser (as defined in Section 8-303 of the NY UCC).
Section 2.07. Outstanding Warrants.
Subject to Section 6.02, the Warrants outstanding at any time are all Warrants evidenced on all Warrant Certificates authenticated by the Warrant Agent, as the same, in the case of Global Warrants and Attached Warrants, may be adjusted as provided in Section 2.04 and Annex A to the Warrant Certificates, except for those canceled by it and those delivered to it for cancellation.
Section 2.08. Cancellation.
The Warrant Agent and no one else shall cancel and destroy all Warrant Certificates surrendered for transfer, exchange, replacement, exercise or cancellation and deliver evidence of such destruction to the Company. The Company may not issue new Warrant Certificates to replace Warrant Certificates to the extent they evidence Warrants that have been exercised.
Section 2.09. CUSIP Numbers.
In issuing the Warrants, the Company may use CUSIP numbers (if then generally in use) and, if so, the Warrant Agent shall use CUSIP numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such CUSIP numbers either as printed on the Warrant Certificates or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Warrant Certificates.
Section 2.10. Charges, Taxes and Expenses; Withholding and Reporting Requirements.
No Charge. Issuance of Shares in certificated or book-entry form to a Holder upon the exercise of Warrants evidenced by any Warrant Certificate shall be made without charge to the Holder for any documentary, stamp or similar issue or transfer taxes (other than any such taxes due because the Holder requests such Shares to be issued in a name other than the Holder’s name) or other incidental expense in respect of the issuance of such Shares, all of which such taxes, if any, and expenses shall be paid by the Company. The Holder shall pay to the Company a sum sufficient to cover any documentary, stamp or similar issue or transfer taxes due because the Holder requests Shares to be issued in a name other than the Holder’s name, and the Company may refuse to deliver any such Shares until it receives from the Holder a sum sufficient to pay such taxes.
Withholding and Reporting. The Company shall comply with all applicable tax withholding and reporting requirements imposed by any governmental unit, and all distributions, including deemed distributions (or other situations requiring withholding under applicable law), pursuant to the Warrants will be subject to applicable withholding and reporting requirements. Notwithstanding any provision to the contrary, the Company will be authorized to take any actions that may be necessary or appropriate to comply with such withholding and reporting requirements, which may include (but are not limited to) (i) applying a portion of any cash distribution or consideration to be made under the Warrants to pay applicable withholding taxes, (ii) liquidating a portion of any
non-cash distribution or consideration to be made or paid (including Common Shares issuable upon exercise of the Warrants) under the Warrants to generate sufficient funds to pay applicable withholding taxes, and/or (iii) establishing any other mechanisms the Company believes are reasonable and appropriate, including requiring Holders to submit appropriate tax and withholding certifications (such as IRS Forms W-9 and the appropriate IRS Forms W-8, as applicable).
Section 2.11. Proxies.
The Holder of a Global Warrant may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold beneficial interests through Agent Members, to take any action that a Holder is entitled to take under this Agreement or the Warrants in accordance with the Depositary’s and the relevant Agent Member’s customary procedures.
Section 2.12. Minimum Denominations.
As a component of the Units, Warrants shall be issued in minimum denominations of one Warrant and integral multiples of one Warrant in excess thereof.
ARTICLE III EXERCISE TERMS
Section 3.01. Exercise.
Exercise Period. With respect to any Warrant, such Warrant may be exercised only during the period commencing on, and including, April 1, 2024 and expiring at the Expiration Time. Subject to automatic exercise of the Warrants pursuant to Section 3.01(d), at the Expiration Time, the Warrants will become void and without further legal effect, and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time.
Exercise Price. The Exercise Price for each Warrant shall be $0.01 per Share. No cash shall be payable by a Holder in respect of the Exercise Price for a Warrant upon exercise; rather, as described in Section 3.03, the number of Shares issuable in respect of an exercise of a Warrant shall be determined based on a Net Settlement calculation.
Warrant Share Number. The Warrant Share Number shall initially be one, subject to adjustment as provided in this Agreement.
Automatic Exercise. An unexercised Warrant will be automatically exercised for the benefit of the Holder at the Expiration Time if such Warrant is not exercised by the Holder prior to the Expiration Time; provided that, in the case of Global Warrants, such automatic exercise is permitted by the applicable procedures of the Depositary. As used in this Agreement, exercise of a Warrant means an exercise by the Holder on or prior to the Expiration Time or upon an automatic exercise as described in
this Section 3.01(d), as applicable, and the Exercise Date for any automatically exercised Warrant shall be deemed to be the Expiration Time.
Section 3.02. Manner of Exercise.
Global Warrants. In the case of Warrants represented by a Global Warrant Certificate, the Warrants shall be exercisable, at any time or from time to time during the applicable Exercise Period, in accordance with the practices and procedures of the Depositary and the relevant Agent Members.
Following any such exercise, the number of Warrants represented by the applicable Global Warrant Certificate shall be reduced in accordance with the procedures of the Depositary, whether or not an adjustment is made to Annex A to such Global Warrant Certificate, so that the number of Warrants represented thereby will be equal to the number of Warrants theretofore represented by such Global Warrant Certificate less the number of Warrants then exercised.
An Agent Member, and any Person authorized by such Agent Member, may, without the consent of the Warrant Agent or any other Person, on its own behalf and on behalf of the owner of a beneficial interest in the Global Warrant for which it is acting, enforce this Agreement and the Global Warrant, including its or such beneficial owner’s right to exercise and receive beneficial ownership of Shares issuable upon exercise of the Global Warrant, and may institute and maintain any suit, action or proceeding against the Company to enforce its rights in respect thereof.
Definitive Warrants. In the case of Warrants represented by a Definitive Warrant Certificate, the Warrants shall be exercisable, at any time or from time to time during the applicable Exercise Period, by the surrender of the applicable Warrant Certificate to the Warrant Agent and the delivery to the Warrant Agent of the Exercise Notice annexed to such Warrant Certificate, duly completed and executed (or to the Company or to such other office or agency of the Company in the United States as the Company may designate by notice in writing to the Warrant Agent pursuant to Section 6.03, and the Warrant Agent shall cause the notice of any such designation to be sent or communicated to the Holders and owners of a beneficial interest in a Global Warrant pursuant to Section 6.03), together with payment for transfer taxes as set forth in Section 2.10. Whenever some, but not all, of the Warrants represented by such Definitive Warrant Certificate are exercised, the exercising Holder shall be entitled, at the request of such Holder, to receive from the Company within a reasonable time, and in any event not exceeding five (5) Business Days, a new Definitive Warrant Certificate in substantially identical form representing the number of Warrants equal to the number of Warrants theretofore represented by the surrendered Definitive Warrant Certificate less the number of Warrants then exercised.
Warrants Exercised in Full. If any Warrant Certificate shall have been exercised in full, the Warrant Agent shall promptly cancel such certificate following its receipt thereof from the Holder or the Depositary, as applicable.
Transfer Books. The Company will not close its transfer books in respect of the Warrants during the Company’s regular and customary business hours in any manner that interferes with the timely transfer and exercise of the Warrants.
Section 3.03. Settlement. Net Settlement shall apply to each Warrant upon exercise of such Warrant. Upon the exercise of Warrants, the Company shall issue to the Holder, in accordance with Section 3.04 below, a number of Shares for each Warrant so exercised equal to the greater of (x) zero and (y) “X” as determined pursuant to the following formula:
Where: X = Y x (A - B) / A
Y = the Warrant Share Number (as of the Exercise Date);
A = the Fair Market Value of one Common Share (as of the Trading Day immediately prior to the Exercise Date); and
B = the Exercise Price.
The Company shall make all calculations under this Section 3.03, and the Warrant Agent shall have no duty or obligation to verify or confirm the Company’s calculations.
Section 3.04. Issuance of Shares; Authorization.
Global Warrants. Shares issuable upon exercise of Global Warrants shall be issued and delivered no later than two (2) Business Days after the Exercise Date in book-entry format through the facilities of the Depositary. The Company shall use commercially reasonable efforts to cause the Transfer Agent to cooperate with the Depositary and the applicable Agent Member in order to effect the issuance and delivery of Shares in accordance with the practices and procedures of the Depositary.
Definitive Warrants. Shares issuable upon exercise of Definitive Warrants may, at the election of the Holder, as indicated on the Exercise Notice, be issued either in registered format or in book-entry format through the Depositary, as follows:
(i)Registered Format. If the Holder elects to have the Shares issued in registered format, the Company shall issue the Shares in such name or names as indicated on the Exercise Notice, provided the Holder shall have furnished the Company with the appropriate tax identification information and, if the Shares are to be issued in the name of any Person other than the Holder, evidence of the payment of any required transfer or similar tax shall have been furnished to the Company. At the option of the Company, the Shares may either be represented by certificates or issued through direct registration on the books and records of the Transfer Agent. If the Shares are issued in certificated form, the Company shall physically deliver the certificates representing the Shares to the address specified
in the Exercise Notice. The Company shall cause the Shares to be issued and delivered as aforesaid, as promptly as practical but in any event no later than four
(4) Business Days after the Exercise Date.
(ii)Book-Entry Format. If the Holder elects to have the Shares issued and delivered in book-entry format, the Company shall cause the Transfer Agent, no later than two (2) Business Days after the Exercise Date, to cooperate with the Agent Member designated by the Holder on the Exercise Notice in order that the Shares will be issued, delivered and credited to the account of the Agent Member at the Depositary for the benefit of the Holder through the Deposit/Withdrawal at Custodian (DWAC) function of the Depositary or such other function as may be adopted by the Depositary for that purpose.
Valid Issuance. The Company represents, warrants and covenants that any Shares issued upon the exercise of Warrants in accordance with the provisions of this Agreement and the Warrants shall be duly authorized and validly issued, fully paid and nonassessable and free from preemptive rights and all liens and charges (other than liens or charges created by a Holder). Unless otherwise required by applicable law, any such Shares shall be issued free from any restrictive legends and bearing an unrestricted CUSIP number.
The Shares (or other securities or property to which the exercising Holder is entitled pursuant to this Agreement) issuable or deliverable upon the exercise of Warrants shall be deemed to have been issued or delivered for all purposes as of the close of business on the applicable Exercise Date, notwithstanding that the stock transfer books of the Company may then be closed or certificates or other evidence of ownership representing such Shares (or other securities or property) may not be actually delivered or entered on such date.
No Rights as Shareholder. Nothing contained in this Agreement or the Warrants shall be construed as conferring upon the Holders the right to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter, or any rights whatsoever, including the right to receive dividends or other distributions, as shareholders of the Company, or the right to share in the assets of the Company in the event of its liquidation, dissolution or winding up, except on and after the Exercise Date with respect to Common Shares received following an exercise of Warrants. In addition, nothing contained in this Agreement or the Warrants shall be construed as imposing any liabilities on the Holders as shareholders of the Company, whether such liabilities are asserted by the Company or by creditors of the Company.
Section 3.05. No Fractional Shares or Scrip.
No fractional Shares or scrip representing fractional Shares shall be issued upon any exercise of Warrants. In lieu of any fractional Share to which a Holder would otherwise be entitled upon an exercise of Warrants, such Holder shall be entitled to receive a cash payment equal to the value of such fractional Share based on the Fair
Market Value of the Common Shares as of the Trading Day immediately prior to the applicable Exercise Date. The number of full Shares that shall be issuable upon an exercise of Warrants by a Holder at any time shall be computed on the basis of the aggregate number of Shares which may be issuable pursuant to the Warrants being exercised by that Holder as of the applicable Exercise Date. Whenever a payment for fractional Shares is to be made by the Warrant Agent under any section of this Agreement, the Company shall (i) provide to the Warrant Agent in reasonable detail the facts related to such payments and the prices and/or formulas utilized in calculating such payments, and (ii) provide sufficient monies to the Warrant Agent in the form of fully collected funds to make such payments.
Any Holder, or any owner of a beneficial interest in a Global Warrant, by its acceptance of a Warrant Certificate, expressly agrees to receive cash in lieu of any fractional Share in accordance with this Section 3.05 and waives its right to receive a physical certificate representing such fractional Share upon exercise of any Warrant.
Section 3.06. Covenants Relating to Common Shares Issuable Upon Warrant Exercise.
Reservation of Common Shares. The Company shall at all times reserve and keep available, out of its Common Shares authorized and issued but held in treasury, a number of Common Shares sufficient for the exercise in full of all outstanding Warrants, and the Company shall settle exercises of the Warrants by delivery of such Common Shares held in treasury. The Company shall not take any action that would require an adjustment of the Warrant Share Number if as a result thereof (i) the aggregate number of Shares issuable upon exercise of the outstanding Warrants, together with all Common Shares then outstanding and all Common Shares then issuable upon the exercise of, or underlying, all outstanding options, warrants, conversion and other rights (without duplication), would exceed the total number of Common Shares then authorized by its Charter, or (ii) the aggregate number of Shares issuable upon exercise of the outstanding Warrants would exceed the total number of Common Shares then held in treasury and not reserved for other purposes.
Listing. To the extent the Common Shares are then listed on an Exchange, the Company will procure, at its sole expense, the listing of the Shares issuable upon exercise of the Warrants, subject to issuance or notice of issuance, on all Exchanges on which the Common Shares are then listed or traded. For the avoidance of doubt, the Company shall have no obligation to cause the Warrants to be listed or traded on any Exchange or Over-the-Counter Market or any other similar market of any kind.
Common Share Certificates. If and to the extent that Shares shall be issuable in certificated form upon exercise of Definitive Warrants in accordance with the terms of this Agreement, the Company shall so notify the Warrant Agent. The Warrant Agent shall thereafter be authorized to request from time to time from the Transfer Agents stock certificates required to honor the exercise of outstanding Definitive Warrants, and the Company shall authorize and direct the Transfer Agent to comply with all such requests of the Warrant Agent. The Company shall supply the Transfer Agent
with duly executed stock certificates for such purposes and shall provide or otherwise make available any cash that may be payable upon exercise of Warrants in lieu of the issuance of fractional Shares.
No Impairment. The Company will not, by amendment of its Charter or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities or any other voluntary action, intentionally avoid the observance or performance of any of the terms to be observed or performed by the Company under this Agreement, but will at all times in good faith assist in the carrying out of all the provisions of this Agreement and each Warrant Certificate.
Resale Registration Statement. The Company shall use its commercially reasonable efforts to file, on or before March 1, 2024, a registration statement with the SEC to register the resale of the Shares so as to permit the public resale thereof by the holders, subject to customary suspension rights (the “Resale Registration Statement”). The Company, thereafter, shall use its commercially reasonable efforts to ensure that the Resale Registration Statement is declared effective by the SEC (subject to applicable securities law) by April 1, 2024 and remains effective until such time as all of the Warrants shall have been exercised or terminated in accordance with this Agreement.
Section 3.07. Exercise Calculations.
To the extent applicable, the Company shall calculate and transmit to the Warrant Agent, and the Warrant Agent shall have no obligation under this Agreement to calculate, the number of Shares deliverable pursuant to any exercise of Warrants. The number of Shares to be issued on such exercise will be determined by the Company, with written notice thereof to the Warrant Agent. The Company shall make all these calculations in good faith and in a commercially reasonable manner and absent manifest error, such calculations shall be final and binding on the Holders, the owners of a beneficial interest in the applicable Warrants, and the Warrant Agent. The Warrant Agent shall have no duty or obligation to investigate or confirm whether the Company’s determination of the number of Shares to be issued on such exercise is accurate or correct.
Section 3.08. Unit Split Date.
No Separation Prior to Unit Split Date. Prior to April 1, 2024 (or, if earlier, the relevant Unit Split Date), a Warrant may not be transferred, assigned or exchanged by the Holder thereof separately from, but may be transferred, assigned or exchanged only together with, the principal amount of Notes to which such Warrant is attached in the applicable Unit as provided in the Unit Agreement. On and after the relevant Unit Split Date for a Warrant, the foregoing limitation shall not apply, and such Warrant may be transferred, assigned or exchanged by the Holder thereof separately from the Notes. With respect to a Unit Split Date on account of any Prohibited Event (as defined in the Unit Agreement), if a Prohibited Event occurs with respect to any principal amount of Notes prior to April 1, 2024, the Warrants attached to such principal amount of Notes shall immediately be separated from such principal amount of Notes in accordance with the Unit Agreement and such Warrants may be transferred, assigned or exchanged
by the Holder thereof separately from such principal amount of Notes (and, for the avoidance of doubt, such Warrants shall not be subject to cancellation pursuant to Section 3.09). The Company shall cause any such separated Warrants described in this Section 3.08(a) to be assigned one or more CUSIP numbers different from those assigned to the Units, to the Warrants comprising a part of any Units and, for the avoidance of doubt, to the Notes.
Aggregation; No Fractional Warrants Upon Separation. The number of Warrants that shall be deliverable upon separation of Warrants from the Notes pursuant to Section 3.08(a) at any time shall be computed on the basis of the aggregate principal amount of Units subject to such separation with respect to the Holder thereof as of the relevant Unit Split Date. No fractional Warrants or scrip representing fractional Warrants shall be issued upon any separation of Warrants from the Notes. In lieu of any fractional Warrant to which a Holder would otherwise be entitled upon such separation of Warrants from the Notes, such Holder shall be entitled to receive a cash payment equal to the value of such fractional Warrant based on the Fair Market Value of the Common Shares as of the Trading Day immediately prior to the relevant Unit Split Date. Whenever a payment for fractional Warrants is to be made by the Warrant Agent under this section, the Company shall (i) provide to the Warrant Agent in reasonable detail the facts related to such payments and the prices and/or formulas utilized in calculating such payments, and (ii) provide sufficient monies to the Warrant Agent in the form of fully collected funds to make such payments.
Any Holder, or any owner of a beneficial interest in a Global Warrant, by its acceptance of a Warrant Certificate, expressly agrees to receive cash in lieu of any fractional Warrant in accordance with this Section 3.08(b) and waives its right to receive a physical certificate representing such fractional Warrant upon separation of any Warrant.
Section 3.09. Automatic Termination and Cancellation.
Notwithstanding anything to the contrary in this Agreement, if a Termination Event (as defined in the Unit Agreement) occurs with respect to any principal amount of Units prior to April 1, 2024, then the Warrants forming a part of such Units in a number equal to the Unit Warrant Number (as defined in the Unit Agreement) for such principal amount of Units shall automatically terminate and become void without further legal effect and shall be cancelled for no further consideration, and all rights thereunder and all rights in respect thereof under this Agreement shall cease as of such time.
Section 3.10. Restriction on Number of Shares Issuable Upon Exercise of Warrants.
Notwithstanding anything to the contrary contained in this Agreement (but without limiting the requirements of Section 4.01(m)), the number of Common Shares that may be issued under the Warrants for any reason shall not exceed the maximum number of Common Shares which the Company may issue without shareholder approval under the shareholder approval rules of The New York Stock Exchange or any other
Exchange on which the Common Shares are then listed, including New York Stock Exchange Listing Rule 312.03(c), unless the requisite shareholder approval has been obtained. The foregoing restriction shall continue notwithstanding any failure of the Common Shares to continue to be listed on The New York Stock Exchange or any other Principal Exchange.
ARTICLE IV
ANTI-DILUTION PROVISIONS
Section 4.01. Anti-dilution Adjustments; Notice of Adjustment.
The Warrant Share Number shall be subject to adjustment from time to time as set forth in this Section 4.01; provided that no single event shall give rise to an adjustment under more than one subsection of this Section 4.01 (other than in the case of a dividend or other distribution of different types of property, in which case Section 4.01(a), 4.01(b) or 4.01(c), as the case may be, shall apply to the appropriate parts of each such dividend or distribution); provided further that any issuance of Common Shares upon exercise of the Warrants shall not itself give rise to any adjustment under this Section 4.01.
Stock Splits, Reverse Splits and Dividends. The Warrant Share Number shall be adjusted pursuant to the formula below in the event the Company (i) pays a dividend or makes any other distribution with respect to its Common Shares solely in Common Shares, (ii) subdivides or reclassifies its outstanding Common Shares into a greater number of shares or (iii) combines or reclassifies its outstanding Common Shares into a smaller number of shares. Such adjustment shall become effective (x) in the case of clause (i) above, at the open of business on the ex-date for such dividend or distribution or (y) in the case of clause (ii) or clause (iii) above, at the open of business on the effective date of such event. In the event that a dividend or distribution described in clause (i) above is not so paid or made, the Warrant Share Number shall be readjusted, effective as of the date when the Board of Directors or a committee of members of the Board of Directors to whom the Board of Directors expressly delegates authority to make determinations as to dividends and distributions determines not to make such dividend or distribution, as the case may be, to be the Warrant Share Number that would be in effect if such dividend or distribution had not been declared.
Where: Na = Nb x Oa / Ob
Nb = Warrant Share Number before the adjustment Na = Warrant Share Number after the adjustment
Ob = Number of Common Shares outstanding immediately before the transaction in question
Oa = Number of Common Shares outstanding immediately after the transaction in question
Certain Dividends and Distributions. If the Company dividends or distributes shares of securities, evidences of indebtedness, assets, property, cash, rights, options or warrants (other than (i) dividends, distributions or issuances for which an adjustment is made pursuant to Section 4.01(a); and (ii) Spin-Offs as to which the provisions of Section 4.01(c) below shall apply) to all or substantially all holders of the Common Shares, the Warrant Share Number shall be adjusted pursuant to the formula below. Such adjustment shall become effective at the open of business on the ex-date for such dividend or distribution.
In the event that such dividend or distribution is not so paid or made, the Warrant Share Number shall be readjusted, effective as of the date when the Board of Directors or a committee of members of the Board of Directors to whom the Board of Directors expressly delegates authority to make determinations as to dividends and distributions determines not to make such dividend or distribution, as the case may be, to be the Warrant Share Number that would be in effect if such dividend or distribution had not been declared.
Where: Na = Nb x M / M - D
Nb = Warrant Share Number before the adjustment Na = Warrant Share Number after the adjustment
M = Average of the Fair Market Values of one Common Share for the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the ex-date for such dividend or distribution
D = Fair Market Value of such dividend or distribution made per Common Share as of the ex-date; provided that if such Fair Market Value is determined by reference to the actual or when-issued trading market for any securities, such determination shall consider the prices in such market over the ten (10) consecutive Trading Day period ending on, and including, the Trading Day immediately preceding such ex-date. For purposes of this adjustment, the Fair Market Value of such dividend or distribution (if in the form of securities other than Common Shares) shall be determined as if it were “Common Shares” pursuant to the definition of Fair Market Value.
Spin-Offs. If the Company pays a dividend or makes any other distribution on the Common Shares of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Company, that are, or, when issued, will be, listed or admitted for trading on a Principal Exchange (a “Spin- Off”), the Warrant Share Number shall be adjusted pursuant to the formula below. Such
adjustment shall become effective at the close of business on the last Trading Day of the ten (10) consecutive Trading Day period beginning on, and including, the first Trading Day following ex-date for such Spin-Off on which the Capital Stock of such Subsidiary or other business unit begins to trade regular way on such Principal Exchange (the “Valuation Period”).
Where: Na = Nb x D + M / M
Nb = Warrant Share Number before the adjustment Na = Warrant Share Number after the adjustment
M = Average of the Fair Market Values of one Common Share over the Valuation Period
D = Average of the Fair Market Values of such Capital Stock or similar equity interest distributed to holders of the Common Shares applicable to one Common Share over the Valuation Period. For purposes of this adjustment, the Fair Market Value of such distribution shall be determined as if it were “Common Shares” pursuant to the definition of Fair Market Value.
If the Exercise Date for any exercise of Warrants occurs during the Valuation Period, the reference in the definition of “Valuation Period” to “ten (10)” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the beginning of the Valuation Period and such Exercise Date in determining the Warrant Share Number.
Tender and Exchange Offers. If a publicly-announced tender or exchange offer, or other repurchase offer made by the Company or any of its Affiliates for the Common Shares (other than a Reorganization) shall be consummated, to the extent that the cash and Fair Market Value of any other consideration included in the payment per Common Share exceeds the average of the Fair Market Values of the Common Shares over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated, then the Warrant Share Number shall be adjusted pursuant to the formula below; provided that the Warrant Share Number shall not be decreased as a result of this Section 4.01(d). Such adjustment shall be determined at the close of business on the tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated, but shall become effective as of the date on which such tender or exchange offer expires.Na = Nb x (Oa x M) + C / Ob x M
Where:
Nb = Warrant Share Number before the adjustment Na = Warrant Share Number after the adjustment
M = Average of the Fair Market Values of one Common Share over the ten (10) consecutive Trading Day period ending on, and including, the tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated
C = Aggregate Fair Market Value of all cash and any other consideration paid or payable for Common Shares in such tender or exchange offer
Ob = Number of Common Shares outstanding immediately before giving effect to such tender or exchange offer
Oa = Number of Common Shares outstanding immediately after giving effect to such tender or exchange offer.
If the Exercise Date for any exercise of Warrants occurs on or after the date on which such tender or exchange offer expires and prior to the tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated, references in this Section 4.01(d) to “tenth (10th) Trading Day immediately following the date on which such tender or exchange offer is consummated” shall be deemed replaced by references to such Exercise Date and references in this Section 4.01(d) to “ten (10)” shall be deemed replaced with such lesser number of Trading Days as have elapsed between the date on which such tender or exchange offer is consummated and such Exercise Date, in each case, in determining the Warrant Share Number.
Reorganizations. In the case of any Reorganization, other than a Reorganization that results in a Termination Event (as defined in the Unit Agreement), following the effective time of such Reorganization, a Holder’s right to acquire Shares upon exercise of the Warrants shall be converted into the right to acquire, upon exercise of such Warrants, one Unit of Exchange Property with respect to each Share for which one Warrant was previously exercisable. With respect to any exercise of Warrants following the effective time of such Reorganization, the number of Units of Exchange Property issuable upon exercise of a Warrant shall be calculated pursuant to Article III; provided that, with respect to each Exercise Date following such Reorganization, each reference in Article III to a “share” or a “Common Share” shall be deemed to refer to a Unit of Exchange Property; provided, further that if the Exchange Property consists solely of cash, on the effective date of such Reorganization, each Holder shall receive, in respect of each Warrant it holds, at the same time and upon the same terms as holders of Common Shares receive the cash in exchange for their Common Shares, an amount of cash equal to the greater of (i) (x) the amount of cash that such Holder would have received if such Holder owned, as of the record date for such Reorganization, a number of Common Shares equal to the Warrant Share Number in effect on such record date, minus (y) the Exercise Price in effect on such record date, multiplied by the Warrant
Share Number in effect on such record date and (ii) $0, and upon the Company’s delivery of such cash (if any) in respect of such Warrant, such Warrant shall be deemed to have been exercised in full and canceled. For the avoidance of doubt, if, in connection with any Reorganization in which the Exchange Property is comprised of solely cash, the per share amount of cash received by holders of the Common Shares is less than the Exercise Price, the Warrants shall be deemed to have expired for no consideration.
In the case of any Reorganization in which holders of Common Shares may make an election as between different types of Exchange Property, Holders shall be deemed to have elected (unless a majority of Holders, determined pursuant to Section 6.02(c), otherwise notify the Company prior to the deadline for elections applicable to holders of Common Shares) to receive upon exercise of the Warrants the weighted average of the types and amounts of consideration actually received by the holders of Common Shares.
The Company shall not consummate any Reorganization unless the Company first shall have made appropriate provision to ensure that applicable provisions of this Agreement (including, without limitation, the applicable provisions of this Section 4.01) shall immediately after giving effect to such Reorganization be assumed by and binding on the other party to such Reorganization (or the surviving entity, successor, parent company and/or issuer of the Exchange Property, as appropriate) and applicable to any Exchange Property deliverable upon the exercise of Warrants, pursuant to a customary assumption agreement. Any such assumption agreement shall also include any amendments to this Agreement necessary to effect the changes to the terms of the Warrants described in this Section 4.01(f) and preserve the intent of the provisions of this Agreement (including, without limitation, the adjustment provisions in this Section 4.01). The provisions of this Section 4.01(f) shall similarly apply to successive Reorganizations. The provisions of this Section 4.01(f) are subject, in all cases, to any applicable requirements under the Securities Act and the Exchange Act and the respective rules and regulations promulgated thereunder. Where there is any inconsistency between the requirements of the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder and the requirements of this Section 4.01(f), the requirements of the Securities Act and the Exchange Act and the respective rules and regulations promulgated thereunder shall supersede.
Record Owners. If (i) an adjustment to the Warrant Share Number becomes effective on the ex-date for any dividend, distribution or other event, and (ii) a Holder exercises its Warrants on or after such ex-date and on or prior to the related record date for such dividend, distribution or other event, then, notwithstanding the provisions in this Section 4.01, the Warrant Share Number adjustment relating to the dividend, distribution or other event to which such ex-date corresponds shall not be made with respect to the Warrants exercised by the Holder as aforesaid and instead, such Holder shall be treated as if such Holder were the record owner of the Common Shares issuable upon exercise of such Warrants on the record date, and, as such record holder, shall participate in the related dividend, distribution or other event otherwise giving rise to such adjustment.
Certain Other Events. The Company may, for a period of not less than 20 Business Days, make such increases in the Warrant Share Number as (i) the Board of Directors or a committee of members of the Board of Directors to whom the Board of Directors expressly delegates authority to make determinations as to the Warrant Share Number deems advisable in good faith or (ii) in order to avoid or diminish any income tax to holders of the Common Shares resulting from any dividend or distribution of Common Shares (or rights to acquire Common Shares) or from any event treated as such for income tax purposes.
Shareholder Rights Plans. If the Company has a shareholder rights plan in effect at the time of any exercise of Warrants, then each of the Common Shares issued upon such exercise shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Shares issued upon such exercise shall bear such legends, if any, in each case as may be provided by the terms of any such shareholder rights plan, as the same may be amended from time to time. However, if, prior to any exercise of Warrants, the rights have separated from the Common Shares in accordance with the provisions of the applicable shareholder rights plan, the Warrant Share Number shall be adjusted at the time of separation as if the Company made a distribution of the type for which an adjustment is made pursuant to Section 4.01(b), subject to readjustment in the event of the expiration, termination or redemption of such rights.
Rounding of Calculations; Minimum Adjustments. All calculations under this Section 4.01 shall be made to the nearest one-hundredth (1/100th) of a share, as the case may be. Any provision of this Section 4.01 to the contrary notwithstanding, no adjustment in the Warrant Share Number shall be made if the amount of such adjustment would be less than one-tenth (1/10th) of one Common Share, but any such amount shall be carried forward, and an adjustment with respect thereto shall be made at the time of and together with any subsequent adjustment which, together with such amount and any other amount or amounts so carried forward, shall aggregate one-tenth (1/10th) of one Common Share, or more, or, if earlier, any Unit Split Date or Exercise Date.
Notice of Adjustment. Whenever the Warrant Share Number or the number of shares of stock or property other than Common Shares issuable upon the exercise of the Warrants is adjusted, or the type of securities or property to be delivered upon exercise of the Warrants is otherwise changed, as herein provided, the Company shall deliver to the Warrant Agent a notice of such adjustment or adjustments and shall deliver to the Warrant Agent a statement setting forth the Warrant Share Number and the number and type of shares of stock or property other than Common Shares issuable upon the exercise of a Warrant after such adjustment, setting forth a brief statement of the facts requiring such adjustment and setting forth the computation by which such adjustment was made, and the Warrant Agent shall cause such notice and statement to be sent or communicated to the Holders and owners of a beneficial interest in a Global Warrant in the manner set forth in Section 6.03 hereof. The Company shall make all calculations hereunder in good faith and in a commercially reasonable manner. Any failure to deliver
such notice or statement shall not affect the validity of the relevant adjustments or the events giving rise to such adjustments.
Notice of Action. In the event that the Company shall propose to take any action of the type described in this Section 4.01 (but only if the action of the type described in this Section 4.01 would result in an adjustment to the Warrant Share Number or the number of shares of stock or property other than Common Shares issuable upon the exercise of the Warrants), including any Reorganization, the Company shall deliver to the Warrant Agent a notice, and the Warrant Agent shall cause such notice to be sent or communicated to the Holders and owners of a beneficial interest in a Global Warrant in the manner set forth in Section 6.03, which notice shall specify the record date, if any, with respect to any such action and the approximate date on which such action is to take place. Such notice shall also set forth the facts with respect thereto as shall be reasonably necessary to indicate the effect on the Warrant Share Number and the number of shares of stock or property other than Common Shares issuable upon the exercise of the Warrants. In the case of any action which would require the fixing of a record date, such notice shall be given at least ten (10) days prior to the date so fixed, and in case of all other action, such notice shall be given at least fifteen (15) days prior to the taking of such proposed action. Failure to give such notice, or any defect therein, shall not affect the legality or validity of any such action. Notwithstanding anything to the contrary in this Agreement, the Company shall not be required to deliver any notice pursuant to this Section 4.01(l) at any time that such notice would contain material non-public information relating to the Company or the Common Shares; provided that in the event, at the time the Company is contemplating any action of the type described in this Section 4.01, (i) the Company is aware that such material non-public information exists and (ii) such action would require the fixing of a record date, the Company shall fix the record date in a manner that permits the Company to deliver the applicable notice at least ten(10) days prior to the date so fixed, or, if the fixing of the record date in such manner would result in the violation of law or regulation (including, for the avoidance of doubt, applicable rules of any national securities exchange on which the Common Shares are then listed) the Company shall fix the record date in a manner that permits the Company to deliver the applicable notice prior to the date so fixed as would not result in such violation.
Proceedings Prior to Any Action Requiring Adjustment. As a condition precedent to the taking of any action which would require an adjustment pursuant to this Section 4.01, the Company shall take any action which may be necessary, including obtaining regulatory, The New York Stock Exchange, The Nasdaq Stock Market or other applicable national securities exchange or shareholder approvals or exemptions, in order that the Company may thereafter validly and legally issue as fully paid and nonassessable all Shares that a Holder is entitled to receive upon exercise of a Warrant pursuant to this Agreement, after giving effect to the adjustment that would be made under this Section 4.01.
Section 4.02. Changes to Warrant Certificate.
The form of Warrant Certificate need not be changed because of any adjustment made pursuant to this Agreement, and Warrant Certificates issued after such adjustment may state the same Warrant Share Number and the number of shares of stock or property other than Common Shares issuable upon the exercise of the Warrants as are stated in the Warrant Certificates initially issued pursuant to this Agreement. The Company, however, may at any time in its sole discretion make any ministerial change in the form of Warrant Certificate that it may deem appropriate to give effect to such adjustments and that does not affect the substance of the Warrant Certificate, and any Warrant Certificate thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant Certificate or otherwise, may be in the form as so changed. In the event of any such change, the Company shall give prompt notice thereof to the Warrant Agent and, if appropriate, notation thereof shall be made on all Warrant Certificates thereafter surrendered for registration of transfer or exchange.
ARTICLE V WARRANT AGENT
Section 5.01. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the provisions of this Agreement and the Warrant Agent hereby accepts such appointment and shall perform the same in accordance with the express terms and conditions set forth in this Agreement. The Warrant Agent shall not be liable for anything that it may do or refrain from doing in connection with this Agreement, except for its own gross negligence, willful misconduct, fraud or bad faith.
Notwithstanding anything in this Agreement to the contrary, in no event shall the Warrant Agent be liable for special, punitive, incidental, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Warrant Agent has been advised of the likelihood of such loss or damage and regardless of the form of the action. The rights and obligations of the parties set forth in this Section 5.01 shall survive the termination of this Agreement and the resignation, replacement or removal of the Warrant Agent.
Section 5.02. Rights and Duties of Warrant Agent.
Agent for the Company. In acting under this Agreement and in connection with the Warrant Certificates, the Warrant Agent is acting solely as agent of the Company and does not assume any obligation of agency or trust or any relationship of agency or trust for or with any of the holders of Warrant Certificates or beneficial owners of Warrants.
Counsel. The Warrant Agent may consult with counsel reasonably satisfactory to it, and the advice of such counsel shall be full and complete authorization and protection to the Warrant Agent in respect of any action taken, suffered or omitted by it hereunder in good faith and in accordance with the advice of such counsel.
Documents. The Warrant Agent shall be protected and shall incur no liability for, or in respect of, any action taken or thing suffered by it, absent gross negligence, willful misconduct, fraud or bad faith, in reliance upon any Warrant Certificate, notice, direction, consent, certificate, affidavit, statement or other paper or document reasonably believed by it to be genuine and to have been presented or signed by the proper Officers. The Warrant Agent shall not take any instructions or directions except those given in accordance with this Agreement.
No Implied Obligations. The Warrant Agent shall be obligated to perform only such duties as are specifically set forth herein and in the Warrant Certificates, and no implied or inferred duties, responsibility or obligations of the Warrant Agent shall be read into this Agreement or the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not be under any obligation to take any action hereunder that may cause it to incur any expense or liability for which it does not receive indemnity if such indemnity is reasonably requested. The Warrant Agent shall not be accountable or under any duty or responsibility for the use by the Company of any of the Warrant Certificates countersigned by the Warrant Agent and delivered by it to the Holders or on behalf of the Holders pursuant to this Agreement or for the application by the Company of the proceeds of the Warrants (if any). The Warrant Agent shall have no duty or responsibility in the case of any default by the Company in the performance of its covenants or agreements contained herein or in the Warrant Certificates or in the case of the receipt of any written demand from a Holder with respect to such default, including any duty or responsibility to initiate or attempt to initiate any proceedings at law or otherwise. The Warrant Agent shall have no duty or responsibility to ensure compliance with any applicable federal or state securities law in connection with the issuance, transfer or exchange of any Warrants under this Agreement.
Not Responsible for Adjustments or Validity of Shares. The Warrant Agent shall not at any time be under any duty or responsibility to any Holder to determine whether any facts exist that may require an adjustment of the Warrant Share Number or to calculate any such adjustment, or to make any determination with respect to the nature or extent of any adjustment when made, or with respect to the method employed, herein or in any supplemental agreement provided to be employed, in making the same. The Warrant Agent shall not be accountable with respect to the validity or value of any Shares or of any securities or property that may at any time be issued or delivered upon the exercise of any Warrant or upon any adjustment pursuant to Section 4.01, and it makes no representation with respect thereto. The Warrant Agent shall not be responsible for any failure of the Company to make any cash payment or to issue, transfer or deliver any Shares or stock certificates upon the surrender of any Warrant Certificate for the purpose of exercise or upon any adjustment pursuant to Section 4.01, or to comply with any of the covenants of the Company contained in the Warrant Certificate or this Agreement.
Notices or Demands Addressed to the Company. If the Warrant Agent receives any notice or demand addressed to the Company by the Holder of a Warrant, the Warrant Agent shall promptly forward such notice or demand to the Company.
Ambiguity. In the event the Warrant Agent reasonably believes any ambiguity or uncertainty exists hereunder or in any Warrant Certificate, notice, instruction, direction, request or other communication, paper or document received by the Warrant Agent hereunder, the Warrant Agent shall notify the Company in writing as soon as practicable, and upon delivery of such notice may, in its sole discretion, refrain from taking any action, and shall be fully protected and shall not be liable in any way to the Company or any Holder or other Person for refraining from taking such action, unless the Warrant Agent receives written instructions signed by the Company which eliminate such ambiguity or uncertainty to the reasonable satisfaction of the Warrant Agent. Notwithstanding anything in this Agreement to the contrary, the Warrant Agent is authorized and directed hereby to comply with any orders, judgments, or decrees of any court that it believes has jurisdiction over it and, absent gross negligence, willful misconduct, fraud or bad faith, will not be liable as a result of its compliance with the same.
Section 5.03. Individual Rights of Warrant Agent.
Subject to its obligations hereunder, the Warrant Agent and any shareholder, director, officer or employee of the Warrant Agent may buy, sell or deal in any of the Warrants or other securities of the Company or its Affiliates or become pecuniarily interested in transactions in which the Company or its Affiliates may be interested, or contract with or lend money to the Company or its Affiliates or otherwise act as fully and freely as though it were not the Warrant Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from acting in any other capacity for the Company or for any other legal entity.
Section 5.04. Warrant Agent’s Disclaimer.
The Warrant Agent shall not be responsible for, and makes no representation as to the validity or adequacy of, this Agreement (except the due and valid authorized execution and delivery of this Agreement by the Warrant Agent) or the Warrant Certificates (except the due countersignature of the Warrant Certificate(s) by the Warrant Agent), and it shall not be responsible for any statement in this Agreement or the Warrant Certificates other than its countersignature thereon; nor will the Warrant Agent be under any duty or responsibility to insure compliance with any applicable federal or state securities laws in connection with the issuance, transfer or exchange of Warrant Certificates.
Section 5.05. Compensation and Indemnity.
Compensation of Warrant Agent. The Company agrees to pay the Warrant Agent the compensation to be agreed upon with the Company for all services rendered by the Warrant Agent under this Agreement and to reimburse the Warrant Agent upon request for all reasonable and documented out-of-pocket expenses, including the reasonable and documented counsel fees and expenses, incurred by the Warrant Agent in connection with the preparation, delivery, administration, execution and amendment of this Agreement and the performance of the services and exercise of its
rights or duties rendered by the Warrant Agent under this Agreement. The Company is not obligated to reimburse any expense incurred by the Warrant Agent through gross negligence, willful misconduct, fraud or bad faith.
Indemnification by the Company. The Company shall indemnify and hold harmless the Warrant Agent and its officers and directors against any loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it (each, a “Loss” and, collectively, “Losses”) without gross negligence, willful misconduct, fraud or bad faith on its part arising out of or in connection with the acceptance, administration, exercise or performance of its duties under this Agreement, including the enforcement of this Agreement and this Section hereunder. The Company shall further indemnify and hold the Warrant Agent harmless from and against any Loss arising out of or attributable to the Warrant Agent’s acting on the written instructions of the Company, so long as the Warrant Agent so acted without gross negligence, willful misconduct, fraud or bad faith. The Warrant Agent shall notify the Company promptly of any claim for which it may seek indemnity. The costs and expenses incurred by the Warrant Agent in enforcing its right of indemnification hereunder shall be paid by the Company. The Company is not obligated to indemnify the Warrant Agent against any loss or liability incurred by the Warrant Agent through willful misconduct, gross negligence, fraud or bad faith. The Company need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. The rights and obligations of the parties set forth in Sections 5.05(a) and (b) shall survive the termination of this Agreement and the resignation, replacement or removal of the Warrant Agent.
Section 5.06. Successor Warrant Agent.
Company to Provide and Maintain Warrant Agent. The Company agrees for the benefit of the Holders that there shall at all times be a Warrant Agent hereunder until all the Warrants have been exercised or canceled or are no longer exercisable.
Resignation and Removal. The Warrant Agent may at any time resign by giving written notice to the Company of such intention on its part, specifying the date on which its desired resignation shall become effective; provided that such date shall not be less than sixty (60) days after the date on which such notice is given unless the Company otherwise agrees. The Warrant Agent hereunder may be removed at any time by the filing with it of an instrument in writing signed by or on behalf of the Company and specifying such removal and the date when it shall become effective, which date shall not be less than sixty (60) days after such notice is given unless the Warrant Agent otherwise agrees. Any removal under this Section 5.06(b) shall take effect upon the appointment by the Company as hereinafter provided of a successor Warrant Agent (which shall be (i) a bank or trust company, (ii) organized under the laws of the United States of America or one of the states thereof, (iii) authorized under the laws of the jurisdiction of its organization to exercise corporate trust powers, (iv) having a combined capital and surplus of at least $50,000,000 (as set forth in its most recent reports of condition published pursuant to law or to the requirements of any United States federal or state regulatory or supervisory authority) and (v) having an office in the Borough of
Manhattan, the City of New York) and the acceptance of such appointment by such successor Warrant Agent.
Company to Appoint Successor. In the event that at any time the Warrant Agent resigns, is removed, becomes incapable of acting, fails to perform any of its obligations hereunder or under any Warrant Certificate in accordance with the terms hereof or thereof, is adjudged bankrupt or insolvent, commences a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or under any other applicable federal or state bankruptcy, insolvency or similar law, consents to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator or other similar official of the Warrant Agent or its property or affairs, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts generally as they become due, or takes corporate action in furtherance of any such action, or a decree or order for relief by a court having jurisdiction in the premises has been entered in respect of the Warrant Agent in an involuntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or similar law, or a decree or order by a court having jurisdiction in the premises has been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator or similar official of the Warrant Agent or of its property or affairs, or any public officer takes charge or control of the Warrant Agent or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation (each, a “Warrant Agent Insolvency Event”), a successor Warrant Agent, meeting the qualifications specified in Section 5.06(b), shall be appointed by the Company by an instrument in writing, filed with the successor Warrant Agent. In the event that a successor Warrant Agent is not appointed by the Company within thirty (30) days after the Company has been notified in writing of the resignation or removal of the Warrant Agent, or within thirty (30) days of the incapacity of the Warrant Agent or the occurrence of a Warrant Agent Insolvency Event, a successor Warrant Agent, qualified as aforesaid, may be appointed by the Warrant Agent or the Warrant Agent may petition a court to appoint a successor Warrant Agent, at the expense of the Company. Upon the appointment as aforesaid of a successor Warrant Agent and acceptance by the successor Warrant Agent of such appointment, the Warrant Agent shall cease to be Warrant Agent hereunder; provided that in the event of the resignation of the Warrant Agent under this subsection (c), such resignation shall be effective on the earlier of (i) the date specified in the Warrant Agent’s notice of resignation and (ii) the appointment and acceptance of a successor Warrant Agent hereunder.
Successor to Expressly Assume Duties. Any successor Warrant Agent appointed hereunder shall execute, acknowledge and deliver to its predecessor and to the Company an instrument accepting such appointment hereunder, and thereupon such successor Warrant Agent, without any further act, deed or conveyance, shall become vested with all the rights and obligations of such predecessor with like effect as if originally named as Warrant Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to transfer, deliver and pay over, and such successor Warrant Agent shall be entitled to receive, all monies, securities and other property on deposit with or held by such predecessor, as Warrant Agent hereunder.
Successor by Merger. Any entity into which the Warrant Agent hereunder may be merged or consolidated, or any entity resulting from any merger or consolidation to which the Warrant Agent is a party, or any entity to which the Warrant Agent sells or otherwise transfers all or substantially all of its assets and business (including with respect to the administration of this Agreement), shall be the successor Warrant Agent under this Agreement without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such entity would be eligible for appointment as successor Warrant Agent under Section 5.06(b).
Section 5.07. Force Majeure.
Notwithstanding anything to the contrary contained herein, no party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, terrorist acts, pandemics, epidemics, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval systems, labor difficulties, war, or civil unrest.
Section 5.08. Representations of the Company.
The Company represents and warrants to the Warrant Agent and the Holders that: the Company has been duly organized and is validly existing under the laws of the jurisdiction of its incorporation;
this Agreement has been duly authorized, executed and delivered by the Company and is enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency, moratorium, reorganization and other similar laws affecting the enforcement of creditors’ rights generally and general equitable principles, regardless of whether such enforceability is considered in a proceeding at law or in equity;
the execution and delivery of this Agreement does not, and the issuance of the Warrants and the issuance of the Shares that will be issued and delivered upon exercise of the Warrants, in each case, in accordance with the terms of this Agreement and the Warrant Certificates will not, (i) violate the Company’s Charter or By-Laws, (ii) violate (x) any law or regulation applicable to the Company (including, without limitation, Ohio Revised Code, Chapter 1701 (General Corporation Law)) or any requirement applicable to the Company of any securities exchange on which the Shares are listed or traded or (y) any order or decree of any court or public authority having jurisdiction over the Company, or (iii) result in a breach of any material mortgage, indenture, contract, agreement or undertaking to which the Company is a party or by which it is bound, except in the case of (ii)(y) and (iii) for any violations or breaches that would not reasonably be expected to have a material adverse effect on the Company and its subsidiaries, taken as a whole; and
the Company holds 16,676,576 of its authorized and issued Common Shares in treasury, and the Company shall at all times during the term of the Warrants
reserve and keep available a number of such treasury shares sufficient for the exercise in full of all outstanding Warrants.
ARTICLE VI MISCELLANEOUS
Section 6.01. Persons Benefitting.
Nothing in this Agreement is intended or shall be construed to confer upon any Person other than the Company, the Warrant Agent, the Holders and the owners of a beneficial interest in any Global Warrant any right, remedy or claim under or by reason of this Agreement or any part hereof.
Section 6.02. Amendment.
Amendment without Consent of the Holders. Notwithstanding any of the provisions of Section 6.02(b), this Agreement and the Warrants may be amended, modified and/or supplemented by the Company and the Warrant Agent, at the Company’s expense, without notice to or the consent of any Holder for the purpose of:
(i)curing any ambiguity, omission, inconsistency or mistake contained herein or therein in a manner that is not inconsistent with the provisions of this Agreement and that does not adversely affect the rights of the Holders or the owners of a beneficial interest in any Global Warrant (including, if applicable, the owners of a beneficial interest in any Unit) in any material respect (as determined in good faith by the Board of Directors or any committee thereof);
(ii)adding covenants for the benefit of the Holders;
(iii)adding a guarantor of the Company’s performance obligations or other security for the benefit of the Holders;
(iv)surrendering any right or power conferred upon the Company;
(v)evidencing and providing for the acceptance of an appointment hereunder by a successor Warrant Agent;
(vi)for the purposes of providing for compliance with applicable securities laws, including with respect to the transfer restrictions set forth herein, on account of any changes in law occurring on or after the date of this Agreement; or
(vii)making any other change that does not adversely affect the rights of the Holders or the owners of a beneficial interest in any Attached Warrant or Global Warrant (including, if applicable, the owners of a beneficial interest in any Unit) in any material respect (as determined in good faith by the Board of Directors or any committee thereof).
Amendment with Consent of the Holders. With the consent of the Holders of a majority of the then outstanding Warrants (including without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Warrants), the Company and the Warrant Agent may from time to time, at the Company’s expense, amend, modify and/or supplement this Agreement or the Warrants, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions hereunder or thereunder or of modifying in any manner the rights of the Holders hereunder or thereunder, or waive the observance of any term of this Agreement or the Warrants; provided, however, that, without the consent of each Holder of an outstanding Warrant affected, no such amendment, supplement, modification or waiver shall:
(i)increase the Exercise Price;
(ii)decrease the Warrant Share Number or change or decrease the kind or amount of other property issuable upon exercise of the Warrants, as applicable (in each case, other than pursuant to adjustments provided for in Section 4.01);
(iii)reduce the term of the Warrants or the time period during which the Warrants are exercisable;
(iv)make any change to the anti-dilution or Reorganization provisions set forth in Article IV of this Agreement that would be adverse to a Holder or owner of a beneficial interest in a Global Warrant (including, if applicable, holders of a beneficial interest in any Unit);
(v)make a material and adverse change that does not equally affect all Warrants;
(vi)make any change that would otherwise materially impair a Holder’s right to exercise the Warrants and receive Shares upon such exercise, or the ability of any Holder or Agent Member (on behalf of itself or any owner of a beneficial interest in a Global Warrant, including, if applicable, any owner of a beneficial interest in any Unit) to enforce such right;
(vii)impair the right to institute suit for the enforcement of any payment or delivery with respect to the exercise and settlement of any Warrant;
(viii)make any change that has the effect of changing or relates to Section 3.01(d), Section 3.08 or Section 3.09 or make any change to the definition of Unit Split Date; or
(ix)reduce the percentage of Holders required to amend this Agreement or the Warrants or grant a waiver thereunder or hereunder.
Determination of the Consenting Holders. In determining whether the Holders of the required number of Warrants have concurred in any direction, waiver or consent, Warrants owned by the Company or by any Affiliate of the Company shall be
disregarded and deemed not to be outstanding, except that, for the purpose of determining whether the Warrant Agent shall be protected in relying on any such direction, waiver or consent, only Warrants that the Warrant Agent knows are so owned shall be so disregarded. The Warrant Agent shall be entitled to rely on directions from the Units Trustee as provided in the Unit Agreement in respect of any Attached Warrants. Upon request of the Warrant Agent, the Company shall furnish to the Warrant Agent promptly an Officer’s Certificate listing and identifying all Warrants, if any, known by the Company to be owned or held by or for the account of any of the above described Persons. Also, subject to the foregoing, only Warrants outstanding at the time shall be considered in any such determination.
Record Date; Form. The Company and the Warrant Agent may set a record date for any such direction, waiver or consent and only the Holders as of such record date shall be entitled to make or give such direction, waiver or consent. It is not necessary for Holders or owners of a beneficial interest in a Global Warrant to approve the particular form of any proposed amendment, modification, supplement or waiver if their consent approves the substance thereof. A consent to any amendment, modification, supplement or waiver by any Holder given in connection with the tender of such Holder’s Warrants will not be rendered invalid by such tender.
Action by Warrant Agent. The Warrant Agent shall have no duty to determine whether any such amendment, modification or supplement would have an effect on the rights or interests of the holders of the Warrants. Upon receipt by the Warrant Agent of an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent to the execution of the amendment, modification or supplement have been complied with and such execution is permitted by this Agreement and the Warrant Certificate, the Warrant Agent shall join in the execution of such amendment, modification or supplement; provided that the Warrant Agent may, but shall not be obligated to, execute any such amendment, modification or supplement which affects the rights or changes or increases the duties or obligations of the Warrant Agent. Promptly following execution of any amendment, modification or supplement to this Agreement or the Warrant Certificate, the Company shall send a copy thereof to the Warrant Agent and the Warrant Agent shall cause such document to be sent or communicated to the Holders and owners of a beneficial interest in a Global Warrant in the manner set forth in Section 6.03; provided that any failure to deliver such copy or any defect therein shall not affect the validity of such amendment, modification or supplement. As a condition precedent to the Warrant Agent’s execution of any such amendment, modification or supplement, the Company shall deliver to the Warrant Agent an Officer’s Certificate and an Opinion of Counsel that states that the proposed amendment, modification or supplement is in compliance with the terms of this Section 6.02.
Section 6.03. Notices.
Any notice or communication shall be in writing and delivered in person, by certified or registered mail, or nationally-recognized courier, or by facsimile or e-mail transmission, if acceptable to the parties, addressed as follows:
if to the Company:
Diebold Nixdorf, Incorporated
50 Executive Pkway, P.O. Box 2520
Hudson, Ohio 44236 Attention: Jonathan B. Leiken
Email: Jonathan.Leiken@dieboldnixdorf.com with a copy to:
Sullivan & Cromwell LLP 125 Broad Street
New York, NY 10004 Attention: Ari Blaut
Email: Blauta@sullcrom.com if to the Warrant Agent:
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115
Attention: Corporate Trust Services Email: david.schlabach@usbank.com
The Company or the Warrant Agent by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Holder shall be mailed to the Holder at the Holder’s address as it appears on the Registry and shall be sufficiently given if so mailed within the time prescribed. Any notice to the owners of a beneficial interest in a Global Warrant shall be distributed through the Depositary in accordance with the procedures of the Depositary. Communications to owners shall be deemed to be effective at the time of dispatch to the Depositary.
Failure to provide a notice or communication to a Holder or owner of a beneficial interest in a Global Warrant or any defect in it shall not affect its sufficiency with respect to other Holders or owners of a beneficial interest in a Global Warrant. If a notice or communication is provided in the manner provided above, it is duly given, whether or not the intended recipient actually receives it.
Section 6.04. Governing Law; Waiver of Jury Trial.
This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State.
EACH OF THE COMPANY AND THE WARRANT AGENT ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT OR A WARRANT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PERSON HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PERSON MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR A WARRANT. EACH OF THE COMPANY AND THE WARRANT AGENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PERSON UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PERSON MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PERSON HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 6.05. Successors.
All agreements of the Company in this Agreement and the Warrants shall bind its successors and permissible assigns. All agreements of the Warrant Agent in this Agreement shall bind its successors and permissible assigns.
Section 6.06. Multiple Originals; Counterparts.
The parties may sign any number of copies of this Agreement. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Agreement. A signature to this Agreement transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
Section 6.07. Inspection of Agreement.
A copy of this Agreement shall be made available at all reasonable times for inspection by any Holder or owners of a beneficial interest in a Global Warrant at the office of the Warrant Agent (or successor warrant agent) designated for such purpose.
Section 6.08. Table of Contents.
The table of contents and headings of the Articles and Sections of this Agreement have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 6.09. Severability.
The provisions of this Agreement are severable, and if any clause or provision shall be held invalid, illegal or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect in that jurisdiction only such clause or provision, or part thereof, and shall not in any manner affect such clause or provision in
any other jurisdiction or any other clause or provision of this Agreement in any jurisdiction.
Section 6.10. Customer Identification Program.
Each Person that is a party hereto acknowledges that the Warrant Agent is subject to the customer identification program (“Customer Identification Program”) requirements under the USA PATRIOT Act and its implementing regulations, and that the Warrant Agent must obtain, verify and record information that allows the Warrant Agent to identify each such Person. Accordingly, prior to accepting an appointment hereunder, the Warrant Agent may request information from any such Person that will help the Warrant Agent to identify such Person, including without limitation, as applicable, such Person’s physical address, tax identification number, organizational documents, certificate of good standing or license to do business. Each Person that is a party hereto agrees that the Warrant Agent cannot accept an appointment hereunder unless and until the Warrant Agent verifies each such Person’s identity in accordance with the Customer Identification Program requirements.
Section 6.11. Confidentiality.
The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non- public Holder or beneficial owner information, which are exchanged or received pursuant to the negotiation or the carrying out of this Agreement, including the fees for services, shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law, including, without limitation, pursuant to subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Section 6.12. Saturdays, Sundays, Holidays, etc. If the last or appointed day for the taking of any action or the expiration of any right required or granted in this Agreement shall not be a Business Day, then such action may be taken or such right may be exercised on the next succeeding day that is a Business Day.
Section 6.13. Reports and Notices to Holders.
(a)In the event that the Common Shares are deregistered or become otherwise not subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company will provide to the Holders, on a continuous basis for so long as any Warrants remain outstanding, any and all quarterly and annual financial and other information with respect to the Company and its Subsidiaries as is provided to the holders of the Common Shares, in each case, in the form in which such information is so provided to the holders of the Common Shares (which may include, without limitation, posting such information to the Company’s public website or a password-protected website created by the Company for such purpose).
(b)At any time when the Company declares any dividend or other distribution on the Common Shares and the Common Shares are not listed on a U.S. national securities exchange, it shall give notice to the Warrant Agent of any such declaration not
less than ten (10) days prior to the related record date for payment of the dividend or distribution so declared, and the Warrant Agent shall cause such notice to be sent or communicated to the Holders and owners of a beneficial interest in a Global Warrant, in the manner set forth in Section 6.03 hereof, whether or not notice is required to be delivered pursuant to Section 4.01(k).
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the date first written above.
| | | | | |
DIEBOLD NIXDORF, INCORPORATED |
| By: | /s/ Jeffrey Rutherford |
| Name: Jeffrey Rutherford |
| Title: Executive Vice President and Chief Financial Officer |
| | |
[Signature Page to Warrant Agreement] |
| | | | | |
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Warrant Agent |
| By: | /s/ David A. Schlabach |
| Name: David A. Schlabach |
| Title: Vice President |
| | |
[Signature Page to Warrant Agreement] |
EXHIBIT A
[FORM OF WARRANT CERTIFICATE]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO VARIOUS TERMS, PROVISIONS AND CONDITIONS IN THAT CERTAIN WARRANT AGREEMENT DATED AS OF DECEMBER 29, 2022 (THE “WARRANT AGREEMENT”), BETWEEN THE COMPANY AND THE WARRANT AGENT NAMED THEREIN. A COPY OF THE WARRANT AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE ISSUER OF THIS CERTIFICATE.
[Global Warrant Certificate Legend]
UNLESS THIS GLOBAL WARRANT IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO DIEBOLD NIXDORF, INCORPORATED OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY WARRANT CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL WARRANT SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE WARRANT AGREEMENT REFERRED TO ON THE REVERSE HEREOF.
[Restricted Warrants Legend:]
[THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF IAI OR 144A WARRANTS: ONE YEAR AFTER
THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT][IN THE CASE OF REGULATION S WARRANTS: SIX MONTHS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE ON WHICH THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF REGULATION S) IN RELIANCE ON REGULATION S], ONLY (A) TO DIEBOLD NIXDORF, INCORPORATED (THE “COMPANY”) OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE WARRANT AGENT’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. [IN THE CASE OF REGULATION S WARRANTS: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES THAT HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY AND THE COMMON SHARES ISSUABLE UPON EXERCISE HEREOF MAY NOT BE CONDUCTED UNLESS IN COMPLIANCE WITH THE SECURITIES ACT, AND THIS SECURITY MAY NOT BE EXERCISED BY OR ON BEHALF OF A U.S. PERSON UNLESS REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.]]
[Definitive Warrants Legend:]
[IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE WARRANT AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS THE WARRANT AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.]
[RULE 144A] [REG S] [IAI] [UNRESTRICTED] [GLOBAL] [INITIAL] [DEFINITIVE] WARRANT CERTIFICATE
representing WARRANTS
to acquire Common Shares of
Diebold Nixdorf, Incorporated [DATE]
No. [RA- ] [RS- ] [RIAI- ] [U- ] [CUSIP No.: [ ]]1 This certifies that, for value received, [the Units Trustee]2[Cede & Co.]3[ ]4, and any of its registered assigns, is the registered owner of [the number of Warrants set forth on Annex A hereto]5[ Warrants]6, each of which entitles the Holder, upon exercise thereof during the applicable Exercise Period and in accordance with Article III of the Warrant Agreement, to acquire from the Company a number of Shares calculated pursuant to Article III of the Warrant Agreement for a price per Share equal to the Exercise Price. No cash shall be payable by a Holder in respect of the Exercise Price for a Warrant upon exercise; rather, the number of Shares issuable in respect of an exercise of a Warrant shall be determined based on a Net Settlement calculation. Each Warrant shall initially be exercisable for one Share for an Exercise Price of $0.01. Any unexercised Warrant shall be automatically exercised for the benefit of the Holder at the Expiration Time if a Warrant is not exercised by the Holder prior to the Expiration Time if any Common Shares or cash in lieu of any fractional shares are deliverable to the Holder as a result of the Net Settlement calculation[; provided that such automatic exercise is permitted by the applicable procedures of the Depositary]7. The Warrant Share Number is subject to adjustment as provided in Article IV of the Warrant Agreement. This Warrant Certificate and the Warrants represented hereby are issued under and in accordance with a Warrant Agreement dated as of December 29, 2022 (the “Warrant Agreement”), between the Company and U.S. Bank Trust
1 Include for Warrant Certificates representing Separated Warrants.
2 Include for Initial Warrant Certificate.
3 Include for Global Warrant.
4 Include for Definitive Warrant.
5 Include for Initial Warrant Certificate and Global Warrant.
6 Include for Definitive Warrant.
7 Include for Global Warrant.
Company, National Association (the “Warrant Agent,” which term includes any successor Warrant Agent under the Warrant Agreement), and is subject to the terms and provisions contained in the Warrant Agreement, to all of which terms and provisions the beneficial owners of the Warrants and the Holders consent by acceptance hereof. Any capitalized terms used but not defined herein that are defined in the Warrant Agreement shall have the meanings set forth in the Warrant Agreement. The Warrant Agreement is hereby incorporated herein by reference and made a part hereof. In the event of any inconsistency between the Warrant Agreement and this Warrant Certificate, the Warrant Agreement shall govern. Reference is hereby made to the Warrant Agreement for a statement of the respective rights, limitations of rights, duties and obligations of the Company, the Warrant Agent and the Holders and owners of beneficial interests in the Warrants. A copy of the Warrant Agreement may be obtained for inspection by the Holders upon written request to the Warrant Agent at the address of the Warrant Agent set forth in the Warrant Agreement. The Warrant Agreement and this Warrant Certificate may be amended, modified and/or supplemented and the observance of any term of the Warrant Agreement or this Warrant Certificate may be waived only to the extent provided in the Warrant Agreement.
Prior to the Exercise Date and as described more fully in the Warrant Agreement, Warrants shall not entitle the Holder to any of the rights of the holders of Common Shares.
As described more fully in the Warrant Agreement, (i) prior to April 1, 2024 (or, if earlier, the relevant Unit Split Date), a Warrant may not be transferred, assigned or exchanged by the Holder thereof separately from, but may be transferred, assigned or exchanged only together with, the principal amount of Notes to which such Warrant is attached in the applicable Unit as provided in the Unit Agreement and (ii) prior to April 1, 2024, the Warrants are subject to automatic termination and cancellation in certain circumstances.
This Warrant Certificate shall be binding upon any successors or assigns of the Company. This Warrant Certificate shall not be valid until an authorized signatory of the Warrant Agent or its agent as provided in the Warrant Agreement countersigns this Warrant Certificate. Such signature shall be conclusive evidence that this Warrant Certificate has been countersigned under the Warrant Agreement.
This Warrant Certificate and the Warrants evidenced hereby will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State.
IN WITNESS WHEREOF, the Company has caused this Warrant Certificate to be duly executed by a duly authorized officer. This Warrant Certificate shall not be valid or obligatory for any purpose until it shall have been countersigned by the Warrant Agent.
Dated: [ ]
| | |
DIEBOLD NIXDORF, INCORPORATED |
By: |
| Name: |
| Title: |
Countersigned by:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Warrant
Agent
By: Authorized Signatory
[SIGNATURE PAGE TO WARRANT CERTIFICATE]
ANNEX A
[Annex A to Initial Warrant Certificate]8
The initial number of Warrants represented by this Initial Warrant Certificate is [ ].
In accordance with the Warrant Agreement and the Unit Agreement referred to therein, the following
(A) decreases of the number of Warrants that are part of a Unit (an “Attached Unit Warrant”) indicated below have been made in exchange for a like number of Warrants to be represented by a Global Warrant that has been separated from a Unit (a “Separated Warrant”) and (B) increases or decreases, as the case may be, in the number of Attached Unit Warrants represented by this Initial Warrant Certificate have been made as a result of the cancellation or exchange of certain Attached Unit Warrants represented by this Initial Warrant Certificate:
| | | | | | | | | | | |
Date of Cancellation/ Exchange of Attached Unit Warrants |
Number of Attached Unit Warrants Canceled/ Exchanged | Total Number of Attached Unit Warrants Represented Hereby Following Such Cancellation/ Exchange |
Notation Made by Warrant Agent/Custodian |
8 Include for Initial Warrant Certificate.
[Annex A to Global Warrant Certificate]9
The initial number of Warrants represented by this Global Warrant Certificate is zero.
In accordance with the Warrant Agreement and the Unit Agreement referred to therein, the following
(A) exchanges of the number of Warrants indicated below that had been represented by the Initial Warrant Certificate that are part of a Unit (an “Attached Unit Warrant”) for a like number of Warrants to be represented by a Global Warrant that has been separated from a Unit (a “Separated Warrant”) and (B) increases or decreases, as the case may be, in the number of Warrants represented by this Global Warrant Certificate have been made as a result of the exercise, cancellation or exchange of certain Warrants represented by this Global Warrant Certificate:
| | | | | | | | | | | |
Date of Exercise/ Cancellation/ Exchange of Separated Warrants |
Number of Separated Warrants Exercised/ Canceled/ Exchanged | Total Number of Separated Warrants Represented Hereby Following Such Exercise/ Cancellation/ Exchange |
Notation Made by Warrant Agent/Custodian |
9 Include for Global Warrant.
ANNEX B
FORM OF EXERCISE NOTICE
(TO BE EXECUTED ONLY UPON EXERCISE OF WARRANTS) DATE: , 20
TO: [Warrant Agent]
RE: Election to Purchase Common Shares
The undersigned Holder irrevocably elects to exercise the number of Warrants set forth below represented by the Warrant Certificate enclosed herewith, and surrenders all right, title and interest in the number of Warrants exercised hereby to the Company, and directs that the Common Shares or other securities or property issued or delivered upon exercise of such Warrants, and any interests in the enclosed Warrant Certificate representing unexercised Warrants, be registered or placed in the name and at the address specified below and delivered thereto.
Number of Warrants:
| | | | | | | | |
| Holder: By: Name: Title: | |
Signature guaranteed by: | | |
Delivery of Securities and/or Cash: | | |
☐Deliver in book-entry form through the Depositary:
Name of Agent Member: Depositary Participant Account Number:
The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level reasonably acceptable to the Company’s transfer agent.
Contact Information at Agent Member:
Contact Name: Telephone: Email:
☐Deliver in definitive form:
Name: Street Address: City, State and Zip Code: Social Security Number
or Other Identifying Number:
A Warrant Certificate for any unexercised Warrants represented by the enclosed Warrant Certificate should be issued according to the following information. (If no information is specified, a Warrant Certificate for any unexercised Warrants will be issued according to the information appearing on the Registry with respect to the enclosed Warrant Certificate.)
Name: Street Address: City, State and Zip Code: Social Security Number
or Other Identifying Number:
ANNEX C
Form of Assignment
For value received, the undersigned Holder of the within Warrant Certificate hereby sells, assigns and transfers unto the assignee(s) named below (including the undersigned with respect to any Warrants constituting a part of the Warrants evidenced by the within Warrant Certificate not being assigned hereby) all of the right, title and interest of the undersigned under the within Warrant Certificate with respect to the number of Warrants set forth below and does irrevocably constitute and appoint
[ ], the undersigned’s attorney, to make such transfer on the books of the Company maintained for the purpose, with full power of substitution in the premises.
| | | | | | | | | | | |
Name of Assignees |
Address |
Number of Warrants | Social Security Number or other Identifying Number |
Dated:
Holder: By: Name: Title:
Signature guaranteed by:
The signature must correspond with the name as written upon the face of the within Warrant Certificate in every particular, without alteration or enlargement or any change whatever, and must be guaranteed by a participant in a Medallion Signature Guarantee Program at a guarantee level reasonably acceptable to the Company’s transfer agent.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED WARRANTS
This certificate relates to Warrants held in (check applicable space) book-entry or definitive form by the undersigned.
The undersigned has requested the Warrant Agent by written order to exchange or register the transfer of a Warrant or Warrants.
In connection with any transfer of any of the Warrants evidenced by this certificate prior to the Resale Restriction Termination Date, the undersigned confirms that such Warrants are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1)
to the Company or subsidiary thereof; or
(2)pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Securities Act”); or
(3)to a Person that the undersigned reasonably believes is a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act (“Rule 144A”)) that purchases for its own account or for the account of a qualified institutional buyer and to whom notice is given that such transfer is being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule 144A; or
(4)pursuant to offers and sales to non-U.S. persons that occur outside the United States within the meaning of Regulation S under the Securities Act; or
(5)to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished to the Warrants Agent a signed letter containing certain representations and agreements; or
(6)pursuant to Rule 144 under the Securities Act; or
(7)pursuant to another available exemption from registration under the Securities Act.
10 Include only for Global Warrants and Definitive Warrants, other than Unrestricted Warrants.
Unless one of the boxes is checked, the Warrant Agent will refuse to register any of the Warrants evidenced by this certificate in the name of any Person other than the registered Holder thereof; provided, however, that if box (4), (5), (6) or (7) is checked, the Company or the Warrant Agent may require, prior to registering any such transfer of the Warrants, such legal opinions, certifications and other information as the Company or the Warrant Agent has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act.
| | |
Your Signature |
| Date: |
Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Warrant for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
NOTICE: To be executed by
an executive officer
Name: Title:
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Warrant Agent).
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE FROM A REGULATION S GLOBAL WARRANT TO AN UNRESTRICTED GLOBAL WARRANT,
PURSUANT TO SECTION 2.04(b)(vii) OF THE WARRANT AGREEMENT11 The undersigned represents and warrants that either:
the undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within the meaning of Regulation S under the Securities Act); or
the undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within the meaning of Regulation S under the Securities Act) who purchased interests in the Warrants pursuant to an exemption from, or in a transaction not subject to, the registration requirements under the Securities Act; or
the undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned in this Warrant does not constitute the whole or a part of an unsold allotment to or subscription by such dealer for the Warrant.
Dated:
Your Signature
11 Include only for Regulation S Global Warrants.
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
c/o Diebold Nixdorf, Incorporated 50 Executive Parkway
P.O. Box 2520
Hudson, Ohio 44236
Fax No.: (330) 490-4450
Email: jonathan.leiken@dieboldnixdorf.com Attention: Jonathan B. Leiken
Ladies and Gentlemen:
This certificate is delivered to request a transfer of [ ] Warrants of Diebold Nixdorf, Incorporated (the “Company”).
Upon transfer, the Warrants would be registered in the name of the new beneficial owner as follows:
Name: Address: Taxpayer ID Number:
The undersigned represents and warrants to you that:
1.We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional “accredited investor”, and we are acquiring the Warrants, for investment purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment in the Warrants, and we invest in or purchase securities similar to the Warrants in the normal course of our business. We, and any accounts for which we are acting, are each able to bear the economic risk of our or its investment.
2.We understand that the Warrants have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Warrants to offer, sell or otherwise transfer such Warrants prior to the
12 Include only for Global Warrants and Definitive Warrants, other than Unrestricted Warrants.
date that is one year after the later of the date of original issue and the last date on which the Company or any affiliate of the Company was the owner of such Warrants (or any predecessor thereto) (the “Resale Restriction Termination Date”) only in accordance with the Restricted Warrants Legend (as such term is defined in the warrant agreement under which the Warrants were issued) on the Warrants and any applicable securities laws of any state of the United States. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Warrants is proposed to be made prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Warrant Agent, which shall provide, among other things, that the transferee is an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Warrants for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Warrant Agent reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Warrants with respect to applicable transfers described in the Restricted Warrants Legend to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company and the Warrant Agent.
TRANSFEREE: ,
by:
Exhibit 10.3
TWELFTH AMENDMENT
THIS TWELFTH AMENDMENT, dated as of December 29, 2022 (this “Amendment”), is among DIEBOLD NIXDORF, INCORPORATED (f/k/a Diebold, Incorporated), an Ohio corporation (the “Company”), JPMORGAN CHASE BANK, N.A., a national banking association, as administrative agent (in such capacity, the “Administrative Agent”), the other Subsidiary Borrowers party hereto and the Lenders party hereto, and amends that certain Credit Agreement, dated as of November 23, 2015 (as amended by that certain Replacement Facilities Effective Date Amendment, dated as of December 23, 2015, that Second Amendment, dated as of May 6, 2016, that Third Amendment, dated as of August 16, 2016, that Fourth Amendment, dated as of February 14, 2017, that Incremental Amendment, dated as of May 9, 2017, that Fifth Amendment, dated as of April 17, 2018, that Sixth Amendment and Incremental Amendment, dated as of August 30, 2018, that Seventh Amendment, dated as of August 7, 2019, that Eighth Amendment, dated as of February 27, 2020, that Ninth Amendment, dated as of July 20, 2020, that Tenth Amendment, dated as of November 6, 2020, that Eleventh Amendment, dated as of March 11, 2022, and that Limited Waiver related thereto, dated as of October 31, 2022, the “Existing Credit Agreement”, and as amended by this Amendment and as further amended, restated, modified or
supplemented from time to time, the “Credit Agreement”). Capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Existing Credit Agreement.
WHEREAS, the Company desires to conduct an exchange offer pursuant to Section 13.1(b)(iii) of the Credit Agreement and offer to (i) each of the Dollar Term B Lenders holding Dollar Term B Loans (each, in such capacity, an “Existing Dollar Term B Loan Lender”) the right to exchange all (but not less than all) of its Dollar Term B Loans for the same principal amount of New Dollar Term Loans referenced and defined in the related notice of such offer (the “Offer Notice”) and the amount of the Transaction Premium (as defined below) that is added to the principal amount of such New Dollar Term Loans and
(ii) each of the Euro Term B Lenders holding Euro Term B Loans (each, in such capacity, an “Existing Euro Term B Loan Lender”) the right to exchange all (but not less than all) of its Euro Term B Loans for either (x) the same principal amount of New Euro Term Loans or (y) New Dollar Term Loans in an amount specified in the Offer Notice, in each case referenced in the related Offer Notice and the amount of the Transaction Premium (as defined below) that is added to the principal amount of such New Dollar Term Loans or New Euro Term Loans, as applicable (collectively, clauses (i) and (ii), the “Specified Exchange Offer” and the exchanges of such Loans pursuant to the Specified Exchange Offer, the “Exchange”).
WHEREAS, (i) each Existing Dollar Term B Loan Lender that executes and delivers a signature page to the “Lender Consent (Dollar Term B Loans)” in the form attached hereto as Annex I-A agrees to the terms and conditions of this Amendment, the Specified Exchange Offer and the Exchange (each such Lender, in such capacity, a “Consenting Dollar Term B Loan Lender” and collectively, the “Consenting Dollar Term B Loan Lenders”) and (ii) each Existing Euro Term B Loan Lender that executes and delivers a signature page to the “Lender Consent (Euro Term B Loans)” in the form attached hereto as Annex I-B (each of the “Lender Consent (Euro Term B Loans)” and “Lender Consent (Dollar Term B Loans)”, a “Lender Consent”) agrees to the terms and conditions of this Amendment, the Specified Exchange Offer and the Exchange (each such Lender, in such capacity, a “Consenting Euro Term B Loan Lender” and collectively, the “Consenting Euro Term B Loan Lenders”, and the Consenting Dollar Term B Loan Lenders and the Consenting Euro Term B Loan Lenders, collectively, the “Consenting Lenders”);
WHEREAS, the Company, the other Loan Parties, the Administrative Agent and the Lenders party hereto, including the Consenting Lenders, which collectively constitute the Required Lenders (and more than a majority of the aggregate amount of extensions of credit under each Class of Term Loans), have agreed to waive and amend certain provisions of the Existing Credit Agreement as provided herein.
NOW, THEREFORE, in consideration of the premises and the agreement, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. Amendments, Waivers and Consents to the Existing Credit Agreement.
(a)Section 1.1 of the Credit Agreement is hereby amended by adding the following new defined terms in their proper alphabetical order:
“ABL Priority Collateral” means any “ABL Priority Collateral” as defined from time to time in the New ABL Intercreditor Agreement.
“New ABL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Twelfth Amendment Effective Date, by and among, inter alios, JPMorgan Chase Bank, N.A., GLAS Americas LLC, GLAS USA LLC, U.S. Bank National Association and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Specified Intercompany Claims” means, collectively, (i) that certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to the Company (the amount of which, as of the Twelfth Amendment Effective Date, is approximately €656,000,000) and (ii) that certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to Diebold Nixdorf Dutch Holding B.V. (the amount of which, as of the Twelfth Amendment Effective Date, is approximately €343,000,000).
“Transaction Premium” has the meaning assigned to such term in the Twelfth Amendment.
“Twelfth Amendment” means the Twelfth Amendment dated as of December 29, 2022 among the Company, the Subsidiary Borrowers party thereto, the Guarantors party thereto, the Lenders and other parties thereto and the Administrative Agent.
“Twelfth Amendment Effective Date” means December 29, 2022.
(b)The definition of “Excluded Assets” in Section 1.1 of the Credit Agreement is hereby amended and restated to read in its entirety as follows (with the deletions of the stricken text (if any) indicated in the same manner as the following example: stricken text and with the insertions of additional text (if any) indicated in the same manner as the following example: bold and italics text):
“Excluded Assets” means, except to the extent added as Collateral pursuant to the definition of “Covenant Reset Trigger”, (i) any fee-owned real property located outside the United States, (ii) any fee-owned real property located in the United States having a fair market value equal to or less than $10 million, (iii) leasehold interests (it being understood that there shall be no
requirement to obtain leasehold mortgages/deeds of trusts, landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents), motor vehicles, aircraft and other assets subject to certificates of title, (iv) those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti-assignment provisions of the UCC), or to the extent that such security interests would result in material adverse tax consequences to the Company and its Restricted Subsidiaries, taken as a whole, as reasonably determined in good faith by the Company, (v) those assets as to which the Administrative Agent and the Company reasonably determine that the costs
of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (vi) any Intellectual Property Collateral (as defined in the Security Agreement)intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (vii) to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable
organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Administrative Agent), equity interests in any person other than Wholly Owned Subsidiaries, (viii) margin stock, (ix) letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that Company and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below a threshold to be mutually and reasonably agreed (except to the extent perfection can be achieved by the filing of a UCC
financing statement in the state of the Company or such Guarantor’s state of organization, (x) any governmental licenses or state or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the UCC and excluding the proceeds and receivables thereof), (xi) any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Company or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC notwithstanding such prohibition, and (xii) any voting Capital Stock issued by any Excluded Subsidiary (as defined in clauses (i) through (iv) of the definition thereof) in excess of 65% of the total voting Capital Stock issued by such Excluded Subsidiary, (xiii) the ABL Priority Collateral, (xiv) any assets of Diebold Nixdorf Global Holdings B.V., (xv) any assets transferred, directly or indirectly, from a Foreign Subsidiary organized in Germany, Canada, Belgium, France, England and Wales, Sweden, Spain, Poland, Italy or the Netherlands or direct or indirect subsidiary of any such Foreign Subsidiary to any Loan Party on or after the Twelfth Amendment Effective Date and any proceeds or replacements of any such transferred assets, (xvi) the Specified Intercompany Claims and (xv) any asset or property of a Foreign Loan Party.
(c)The text of Section 2.6.5 of the Existing Credit Agreement is hereby amended and restated to read in its entirety as “[Reserved]” and each reference to any such section in the Existing Credit Agreement is hereby deleted.
(d)The text of Sections 2.18(c), 6.1, 6.3, 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.12, 6.13, 6.14, 6.15,
6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.24, 6.25, 6.26, 6.27, 6.28, 6.29, 6.30 and 6.31 of the
Existing Credit Agreement is hereby amended and restated to read in its entirety as
“[Reserved]” and each reference to any such section in the Existing Credit Agreement is hereby deleted.
(e)The text of Section 7.3 of the Existing Credit Agreement is hereby amended and restated as follows (with the deletions of the stricken text (if any) indicated in the same manner as the following example: stricken text and with the insertions of additional text (if any) indicated in the same manner as the following example: bold and italics text):
“Subject to Section 17.5, the breach by any Loan Party of any of the terms or provisions in Sections 6.2, 6.3, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, 6.22, and/or 6.23,
6.24, 6.25, 6.26, 6.27, 6.28, 6.29, 6.31 and/or 10.4(b); provided that the breach of the terms or provisions in Sections 6.22 and/or 6.23 (a “Financial Covenant Default”) shall not constitute a Default with respect to any Loans or Commitments hereunder, other than the Revolving Credit Loans, Term A Loans, Revolving Credit Commitments and Term A Commitments and, solely if the Covenant Holiday Period has ended, the Term A-1 Loans and Term A-1 Commitments, until the date on which the Revolving Credit Loans and Term A Loans (if any) have been accelerated, and the Revolving Credit Commitments and Term A Commitments (if any) have been terminated and, solely if the Covenant Holiday Period has ended, the Term A-1 Loans (if any) have been accelerated and the Term A-1 Commitments (if any) have been terminated, in each case, by (i) if during the Covenant Holiday Period, the Required TLA/RC Lenders or (b) if the Covenant Holiday Period has ended, the Required Pro Rata/TLA- 1 Lenders; provided, further, that, in any event, after the termination of the Revolving Credit Commitments, a Financial Covenant Default shall not constitute a Default.”
(f)The text of each of the Sections 7.5, 7.8, 7.9, 7.10, 7.11 and 7.12 of the Existing Credit Agreement is hereby amended and restated to read in its entirety as “[Reserved]”.
(g)A new Section 7.15 shall be added and shall read “Notwithstanding anything to the contrary herein, upon the cure or remedy of any Default described in this Article VII, including payment of any amounts owing, such Default shall be deemed to no longer exist and to have never have existed under this Agreement.”
(h)The text of Article XI of the Existing Credit Agreement is hereby amended and restated to read in its entirety as set forth on Annex III.
(i)The text of Section 12.2 of the Existing Credit Agreement is hereby amended and restated as follows (with the deletions of the stricken text (if any) indicated in the same manner as the following example: stricken text and with the insertions of additional text (if any) indicated in the same manner as the following example: bold and italics text):
“If any Lender, whether by setoff or otherwise, has payment made to it upon its Obligations owing from a Borrower (other than payments received pursuant to Section 3.2, 3.3, 3.4, 10.6, 13.1(b)(iii) (solely with respect to Term B Loans and solely if any payment is offered to each Term B Lender on substantially the same terms) or as otherwise expressly set forth in this Agreement (including payment of premium resulting from a forced assignment of Term A-1 Loans pursuant to Section 3.5)) in a greater proportion than that received by any other Lender on its Obligations owing from such Borrower, such Lender agrees, promptly upon demand, to purchase a portion of the Advances to such Borrower held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of Advances to such Borrower. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives any protection for its Obligations or such amounts which may be subject to setoff from or with respect to any Borrower, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such protection ratably in proportion to their Obligations owing by such Borrower; provided, however, that no amount received from or with respect to any Borrower shall be applied to any Excluded Swap Obligation of such Borrower. In case any such
payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.”
(j)The text of section 13.1(b)(i)(A) of the Existing Credit Agreement is hereby amended and restated to read in its entirety as “the Company”.
(k)The text of Section 13.1(b)(iii) of the Existing Credit Agreement is hereby amended and restated as follows (with the deletions of the stricken text (if any) indicated in the same manner as the following example: stricken text and with the insertions of additional text (if any) indicated in the same manner as the following example: bold and italics text):
“Notwithstanding anything to the contrary herein, a Term Lender of any Class may assign all or any portion of its Term Loans hereunder to the Company or any of its Subsidiaries, eitherbut only if (a) any such proposed purchase of Term Loans shall be made pursuant to customary Dutch auction procedures open to all Term Lenders of such Class on a pro rata basis to terms to be agreed by the Administrative Agent (such agreement not to be unreasonably withheld, conditioned or delayed), or (b) solely with respect to Term B Loans, pursuant to privately negotiated purchases or exchanges (that need not, for the avoidance of doubt, be offered to all Term Lenders or otherwise be made on a pro rata basis), the consideration for which may consist of cash, loans, securities or any other consideration, and the price for which may be equal to, less than or more than the principal amount of the Term Loans so repurchased, it being understood that, without limitation, the
“Exchange” (as defined in the Twelfth Amendment) shall be permitted pursuant to this Section 13.1(b)(iii)no Default or Unmatured Default has occurred and is continuing at the time of such assignment, (c) no proceeds of the Revolving Credit Facility (or Existing Loan Agreement) are used to acquire such Term Loans and (d) such Term Loans are automatically and permanently cancelled immediately upon the effectiveness of such assignment and are thereafter no longer be outstanding for any purpose hereunder.”
(l)After giving effect to the Exchange, the outstanding principal amount of Dollar Term B Loans under the Credit Agreement (including for purposes of Section 2.2.3(a)) shall be reduced by the aggregate principal amount of the Dollar Term B Loans that are exchanged for New Dollar Term Loans pursuant to the Specified Exchange Offer.
(m)After giving effect to the Exchange, the outstanding principal amount of Euro Term B Loans under the Credit Agreement (including for purposes of Section 2.2.3(b)) shall be reduced by the aggregate principal amount of the Euro Term B Loans that are exchanged for New Euro Term Loans and New Dollar Term Loans pursuant to the Specified Exchange Offer.
(n)Exhibit G attached to this Agreement is hereby inserted in the Credit Agreement as Exhibit G thereto.
(o)Exhibit H attached to this Agreement is hereby inserted in the Credit Agreement as Exhibit H thereto.
(p)Exhibit I attached to this Agreement is hereby inserted in the Credit Agreement as Exhibit I thereto.
(q)The Administrative Agent is hereby irrevocably authorized and directed to (i) execute and deliver the agreements substantially in the form of Exhibit G and Exhibit H hereto, (ii) enter into an agreement to terminate that certain First Lien Priority Intercreditor Agreement, dated
as of July 20, 2020, among, inter alios, Diebold Nixdorf, Incorporated, Diebold Nixdorf Dutch Holdings B.V. Diebold Self-Service Solutions S.AR.L, JPMorgan Chase Bank, N.A.,
U.S. Bank National Association and U.S. Bank Trustees Limited and (iii) take such further actions, including but not limited to executing any further documents, instruments, certificates or releases, delivering any collateral, making any filings or recordings, updating the loan register and taking any similar or related administrative actions, effecting any payments, or taking any other actions in its capacity as Administrative Agent, in each case, as it determines, to facilitate or effect to this Amendment, the Exchange and the transactions contemplated hereby or thereby. Additionally, the Company certifies to the Administrative Agent that this Amendment is permitted pursuant to the terms of Section 8.2 of the Existing Credit Agreement. For the avoidance of doubt and without limiting the foregoing the Administrative Agent is hereby irrevocably authorized and directed to execute (and file or record if applicable or authorize the filing or recording of) the release documentation, UCC amendments or terminations, IP terminations and other filings substantially in the forms attached hereto as Exhibit I.
(r)All Revolving Credit Commitments (including any Issuer Sublimits) are hereby permanently terminated in full.
(s)With respect to any Term Loans that remain outstanding under the Credit Agreement after the Twelfth Amendment Effective Date, such Term Loans will have a single new initial Interest Period of 1 month for all such Term Loans denominated in dollars and a single new initial Interest Period of 1 month for all such Term Loans denominated in euro (or, in each case, in the event the Company timely provides notice to the Administrative Agent, such other length of a single Interest Period as permitted under the Existing Credit Agreement) commencing on the Twelfth Amendment Effective Date, with the Company deemed to have submitted any conversion notices required to effect the forgoing.
SECTION 2. REPRESENTATIONS.
(a)Each of the Company and the Subsidiary Borrowers (insofar as such representations and warranties relate to such Subsidiary Borrower) makes the representations and warranties in Article V of the Credit Agreement and confirms that such representations and warranties are true and correct as of the date hereof, except to the extent any such representation or warranty relates solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date.
(b)The Company represents and warrants that immediately before and after giving effect to this Amendment on the date hereof, (i) no Default or Unmatured Default has occurred and is continuing and (ii) the execution, delivery and performance of this Amendment have been duly authorized by all requisite corporate, limited liability company or partnership action, as applicable, on the part of each Loan Party; this Amendment has been duly executed and delivered by each Loan Party; and this Amendment constitutes a valid and binding agreement of each Loan Party, enforceable against each Loan Party in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by general equitable principles relating to enforceability (whether enforcement is sought by proceedings in equity or at law).
SECTION 3. TRANSACTION PREMIUM. The Company agrees to pay on the Twelfth Amendment Effective Date to each Consenting Dollar Term B Loan Lender and Consenting Euro Term B Loan Lender a consent fee equal to 3.00% of the aggregate principal amount of such Consenting Dollar Term B
Loan Lender’s or Consenting Euro Term B Loan Lender’s New Dollar Term Loans or New Euro Term Loans, as applicable, that are exchanged for Dollar Term B Loans or Euro Term B Loans, as applicable,
in connection with the Exchange (such fee, the “Transaction Premium”). Such Transaction Premium will be fully due and payable and earned on the Twelfth Amendment Effective Date in the form of additional aggregate principal amount of New Dollar Term Loans, in the case of Term B Loans exchanged for New Dollar Loans, or additional aggregate principal amount of New Euro Term Loans, in the case of Euro Term B Loans exchanged for New Euro Term Loans, on the Twelfth Amendment Effective Date.
SECTION 4. CONDITIONS TO EFFECTIVENESS.
The effectiveness of the amendments, waivers and consents set forth in Section 1 of this Amendment and of the other provisions of this Amendment are subject to the substantially simultaneous satisfaction of each of the following conditions (the date such conditions are satisfied, the “Twelfth Amendment Effective Date”):
(a)(i) this Amendment is duly executed and delivered by the Borrowers, the Administrative Agent and Consenting Lenders constituting Required Lenders and (ii) at least 95% (or a different amount mutually agreed by the Company and the Majority Consenting Parties (as defined in the TSA)) of all Term B Lenders shall have executed a Lender Consent (Dollar Term B Loans) in the form attached hereto as Annex I-A or Lender Consent (Dollar Term B Loans) in the form attached hereto as Annex I-B, as applicable;
(b)the Administrative Agent, the Majority Ad Hoc Parties (as defined in the TSA) and the Majority Term Loan Parties (as defined in the TSA) shall have received evidence reasonably satisfactory to it that substantially concurrently with the Twelfth Amendment Effective Date, the “Transactions” (as defined in that certain Transaction Support Agreement, dated as of October 20, 2022 (as
amended by that certain First Amendment thereto, dated as of November 28, 2022) (the “TSA”), by and among the Company, the other Company Parties (as defined therein) and the Consenting Parties (as defined therein)) that are required by the TSA to occur on the Twelfth Amendment Effective Date will be consummated in accordance with the terms of the TSA;
(c)the Administrative Agent, the Majority Ad Hoc Parties (as defined in the TSA) and the Majority Term Loan Parties (as defined in the TSA) shall have received evidence reasonably satisfactory to them that substantially concurrently with the Twelfth Amendment Effective Date, any required prepayment in cash of the New Dollar Term Loans and New Euro Term Loans as required pursuant to the terms of the TSA will occur;
(d)the Administrative Agent shall have received a certificate, dated the Twelfth Amendment Effective Date and signed by a responsible officer of the Company, confirming the matters specified in Section 2(b) hereof and clause (e) below;
(e)the representations and warranties set forth in Article V of the Existing Credit Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Twelfth Amendment Effective Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that, in each case, such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof;
(f)the Administrative Agent shall have received, for the account of the applicable Person, (a) any fees owing from the Company in respect of this Amendment, as separately agreed in writing by the Company, and (b) reimbursement or payment of all the Administrative Agent’s reasonable out‑of‑pocket expenses (including reasonable fees, charges and disbursements of counsel) incurred in connection with this Amendment, required to be reimbursed or paid by any Loan Party hereunder or under any other Loan Document, and invoiced to the Company at least two Business Days prior to the date hereof; and
(g)the Administrative Agent shall have received evidence reasonably satisfactory to it that, substantially concurrently with the Twelfth Amendment Effective Date, (x) all outstanding Revolving Credit Loans and Swing Line Loans (and accrued and unpaid interest thereon and any accrued commitment fees in respect of any Revolving Credit Commitments) will be repaid in full and (y) all Facility Letters of Credit will be returned, cash collateralized, replaced or rolled in a manner satisfactory to the Administrative Agent and each issuer thereof (and any accrued letter of credit or issuing fees thereon will be paid).
SECTION 5. MISCELLANEOUS.
(a)On and after the date hereof, references in the Credit Agreement or in any other Loan Document to the Credit Agreement shall be deemed to be references to the Credit Agreement as amended hereby and as further amended, restated, modified or supplemented from time to time. This Amendment shall constitute a Loan Document.
(b)Except as expressly amended hereby, each of the Borrowers agrees that the Credit Agreement and the other Loan Documents are ratified and confirmed and shall remain in full force and effect in accordance with their terms and that they are not aware of any set off, counterclaim, defense or other claim or dispute with respect to any of the foregoing. Except as expressly set forth herein, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. Nothing herein shall be deemed to entitle any Borrower to any future consent to, or waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. This Amendment shall not constitute a novation of any Obligations.
(c)This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment and/or any other Loan Document shall be deemed to include an executed counterpart of a
signature page of this Amendment by telecopy or electronic mail message (an “Electronic Signature”), deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent the Administrative Agent has agreed to accept any Electronic Signature, the Administrative Agent and each of the
Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of a Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of the Administrative Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart.
(d)This Amendment shall be construed in accordance with and governed by the law of the State of New York.
(e)Any provision in this Amendment that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Amendment are declared to be severable.
(f)The Consenting Lenders (constituting the Required Lenders) and the Loan Parties hereby acknowledge and agree to the exchange mechanics set forth on Annex II hereto and direct the Administrative Agent and JPMorgan Chase Bank, N.A. (in its capacity as administrative agent under the New Credit Agreement (as defined in Annex II hereto)), as applicable, to implement such mechanics.
[SIGNATURE PAGES FOLLOW]
In WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers and general partners thereunto duly authorized, as of the date first written above.
| | | | | | | | |
DIEBOLD NIXDORF, INCORPORATED |
| By | /s/ Jeffrey Rutherford |
| Name: | Jeffrey Rutherford |
| Title: | Executive Vice President and Chief Financial Officer |
| | | | | | | | |
DIEBOLD SELF-SERVICE SOLUTIONS S.A R.L. |
| By | /s/ James Barna |
| Name: | James Barna |
| Title: | Manager |
| | |
[Signature Page to Twelfth Amendment] |
| | | | | | | | |
JPMORGAN CHASE BANK, N.A., as Administrative Agent |
| By | /s/ Christine Lathrop |
| Name: | Christine Lathrop |
| Title: | Executive Director |
| | |
[Signature Page to Twelfth Amendment] |
[Lenders’ signature pages on file with the Company]
EXHIBIT G [FORM OF] FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT
FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT
among
DIEBOLD NIXDORF, INCORPORATED,
the other Grantors party hereto, GLAS USA LLC,
as Administrative Agent for the Superpriority Secured Parties and as an Authorized Representative,
GLAS Americas LLC,
as Collateral Agent for the Superpriority Secured Parties and as an Authorized Representative,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent for the 2025 Credit Agreement Secured Parties and as an Authorized Representative,
GLAS Americas LLC,
as Collateral Agent for the 2025 Credit Agreement Secured Parties and as an Authorized Representative,
U.S. Bank Trust Company, National Association,
as Trustee for the 2025 U.S. Notes Secured Parties and as an Authorized Representative,
GLAS Americas LLC,
as Collateral Agent for the 2025 U.S. Notes Secured Parties and as an Authorized Representative,
U.S. Bank Trust Company, National Association,
as Trustee for the 2025 E.U. Notes Secured Parties and as an Authorized Representative,
GLAS Americas LLC,
as Collateral Agent for the 2025 E.U. Notes Secured Parties and as an Authorized Representative,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent for the 2023 Credit Agreement Secured Parties and as an Authorized Representative,
and
each additional Authorized Representative from time to time party hereto
dated as of December 29, 2022
FIRST LIEN PARI PASSU INTERCREDITOR AGREEMENT, dated as of December 29,
2022 (as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, this “Agreement”), among:
(i)GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “Superpriority Credit Agreement Administrative Agent”),
(ii)GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “Superpriority Credit Agreement Collateral Agent”),
(iii)JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 Credit Agreement Administrative Agent”),
(iv)GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 Credit Agreement Collateral Agent”),
(v)U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 U.S. Notes Trustee”),
(vi)GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 U.S. Notes Collateral Agent”),
(vii)U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 E.U. Notes Trustee”),
(viii)GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 E.U. Notes Collateral Agent”),
(ix)JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2023 Credit Agreement Administrative Agent”),
(x)Each additional Authorized Representative from time to time party hereto for the other Additional First Lien Priority Secured Parties of the Series (as defined below) with respect to which it is acting in such capacity, and
(xi)Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”) and the other Grantors (as defined below) from time to time party hereto.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Defined Terms. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Superpriority Credit Agreement or, if defined in the Uniform Commercial Code, the meanings specified therein. As used in this Agreement, the following terms have the meanings specified below:
“2023 Credit Agreement” means that certain credit agreement, dated as of November 23, 2015, by and among the Company, JPMorgan Chase Bank, N.A., as Administrative Agent, the Subsidiary Borrowers (as defined therein) and the other parties from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“2023 Credit Agreement Agent” shall mean the 2023 Credit Agreement Administrative Agent, and shall include any successor administrative agent and collateral agent as provided in the 2023 Credit Agreement.
“2023 Credit Agreement Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor administrative agent as provided in the 2023 Credit Agreement.
“2023 Credit Agreement Collateral” means Collateral (as defined in the 2023 Credit Agreement Security Agreement), excluding, for the avoidance of doubt, any Excluded Assets (as defined in the 2023 Credit Agreement), with respect to which a Lien is granted pursuant to the 2023 Credit Agreement Security Agreement as security for any 2023 Credit Agreement Obligations, which Lien is, at any time of determination, a valid and perfected Lien that has not been avoided, disallowed, set aside, invalidated, or subordinated pursuant to Chapter 5 of the Bankruptcy Code or any similar Bankruptcy Law.
“2023 Credit Agreement Obligations” means all Obligations (as defined in the 2023 Credit Agreement).
“2023 Credit Agreement Security Agreement” means that certain Security Agreement, dated as of August 12, 2016, by and among the Company, the Subsidiary Pledgors (as defined
therein) party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“2023 Credit Agreement Secured Parties” means the holders of Obligations under the 2023 Credit Agreement, in such capacity, and the 2023 Credit Agreement Agent.
“2025 Credit Agreement” means that certain credit agreement, dated as of the date hereof, by and among the Company, the 2025 Credit Agreement Representative and the other parties thereto, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time.
“2025 Credit Agreement Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor administrative agent as provided in the 2025 Credit Agreement.
“2025 Credit Agreement Agent” shall mean (i) the 2025 Credit Agreement Administrative Agent and (ii) the 2025 Credit Agreement Collateral Agent, as applicable, and shall include any successor administrative agent and collateral agent as provided in the 2025 Credit Agreement.
“2025 Credit Agreement Collateral Agent” has the meaning assigned to it in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2025 Credit Agreement.
“2025 Credit Agreement Obligations” means all Obligations (as defined in the 2025 Credit Agreement).
“2025 Credit Agreement Secured Parties” means the holders of Obligations under the 2025 Credit Agreement, in such capacity, and the 2025 Credit Agreement Agent.
2025 E.U. Notes Collateral Agent has the meaning assigned to it in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2025 E.U. Notes Indenture.
“2025 E.U. Notes Indenture” means that certain indenture, dated as of July 20, 2020, by and among the Company, Diebold Nixdorf Dutch Holding B.V., as the Dutch Issuer, the Guarantors (as defined therein) party thereto, the 2025 E.U. Notes Trustee, the 2025 E.U. Notes Collateral Agent and the other parties from time to time party thereto, as amended, supplemented or otherwise modified or Refinanced from time to time.
“2025 E.U. Notes Obligations” means all Obligations under and in respect of the 2025 E.U. Notes Indenture.
“2025 E.U. Notes Secured Parties” means the holders of Obligations arising under or in connection with the 2025 E.U. Notes Indenture, in such capacity, and the 2025 E.U. Notes Trustee.
“2025 E.U. Notes Trustee” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor trustee as provided in the 2025 E.U. Notes Indenture.
“2025 U.S. Notes Collateral Agent” has the meaning assigned to it in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Indenture” means that certain indenture, dated as of July 20, 2020, by and among the Company, the Guarantors (as defined therein) party thereto, the 2025 U.S. Notes Trustee, the 2025 U.S. Notes Collateral Agent and the other parties from time to time party thereto, as supplemented by that certain First Supplemental Indenture dated as of the date hereof and as otherwise amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“2025 U.S. Notes Obligations” means all Obligations under and in respect of the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Secured Parties” means the holders of Obligations arising under or in connection with the 2025 U.S. Notes Indenture, in such capacity, and the 2025 U.S. Notes Trustee.
“2025 U.S. Notes Trustee” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor trustee as provided in the 2025 U.S. Notes Indenture.
“2026 Notes Indenture” means that certain indenture, dated as of the date hereof, by and among the Company, the Subsidiary Guarantors (as defined therein) party thereto, U.S. Bank Trust Company, National Association, as trustee, GLAS Americas LLC, as collateral agent, and the other parties from time to time party thereto, as amended, supplemented or otherwise modified or Refinanced from time to time.
“ABL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among JPMorgan Chase Bank, N.A., as administrative agent and collateral agent under the ABL credit agreement referenced therein, GLAS Americas LLC, as European collateral agent under the ABL credit agreement referenced therein, GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement, GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement, JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement, GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025
U.S. Notes Indenture, U.S. Bank Trust Company, National Association, as trustee under the 2025
E.U. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture, JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement,
U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture, and GLAS Americas LLC, as collateral agent under the 2026 Notes Indenture, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Additional First Lien Debt” has the meaning assigned to such term in Section 5.15. “Additional First Lien Debt Parties” has the meaning assigned to such term in Section 5.15. “Additional First Lien Debt Representative” has the meaning assigned to such term in Section 5.15.
“Additional First Lien Priority Documents” means, with respect to the Initial Additional First Lien Priority Obligations or any Series of Additional First Lien Debt, the notes, indentures, security documents and other operative agreements evidencing or governing such indebtedness and liens securing such indebtedness, including the Initial Additional First Lien Priority Documents and the Additional First Lien Priority Security Documents and each other agreement entered into for the purpose of securing the Initial Additional First Lien Priority Obligations or any Series of Additional First Lien Debt; provided that, in each case, the Indebtedness thereunder (other than the Initial Additional First Lien Priority Obligations) has been designated as Additional First Lien Priority Obligations pursuant to Section 5.15 hereto.
“Additional First Lien Priority Obligations” means all amounts owing pursuant to the terms of any Additional First Lien Priority Document (including the Initial Additional First Lien Priority Documents), including, without limitation, all amounts in respect of any principal, premium, interest (including any interest accruing subsequent to the commencement of an Insolvency or Liquidation Proceeding at the rate provided for in the respective Additional First Lien Priority Document, whether or not such interest is an allowed claim under any such proceeding or under applicable state, federal or foreign law), penalties, fees, expenses, indemnifications, reimbursements, damages and other liabilities, and guarantees of the foregoing amounts.
“Additional First Lien Priority Secured Party” means the holders of any Additional First Lien Priority Obligations and any Authorized Representative with respect thereto and shall include the Initial Additional First Lien Priority Secured Parties.
“Additional First Lien Priority Security Documents” means any collateral agreement, security agreement or any other document now existing or entered into after the date hereof that create Liens on any assets or properties of any Grantor to secure the Additional First Lien Priority Obligations (including each Initial Additional First Lien Priority Security Agreement).
“Agreement” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Authorized Representative” means, at any time, (i) in the case of any Superpriority Credit Agreement Obligations or the Superpriority Credit Agreement Secured Parties, the Superpriority Credit Agreement Agent, (ii) in the case of the Initial Additional First Lien Priority Obligations or the Initial Additional First Lien Priority Secured Parties, each of the Initial Additional Authorized Representatives for each such Series and (iii) in the case of any other Series of Additional First Lien Priority Obligations or Additional First Lien Priority Secured Parties that become subject to this Agreement after the date hereof, the administrative agent and collateral agent, as applicable, named as authorized representative for such Series in the applicable Joinder Agreement.
“Bankruptcy Code” means Title 11 of the United States Code, as amended, or any similar federal or state law for the relief of debtors.
“Bankruptcy Laws” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, administration, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar federal, state or foreign debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City, or where the registered office of the Superpriority Credit Agreement Agent or each of the Initial Additional Authorized Representatives is located, are authorized or required by law to close.
“Collateral” means all assets and properties subject to Liens created pursuant to any First Lien Priority Security Document to secure one or more Series of First Lien Priority Obligations.
“Collateral Agent” means (i) in the case of any Superpriority Credit Agreement Obligations, the Superpriority Credit Agreement Collateral Agent, (ii) in the case of any Series of Initial Additional First Lien Priority Obligations, the Initial Additional Collateral Agent for such Series of Initial Additional First Lien Priority Obligations and (iii) in the case of any other Series of Additional First Lien Priority Obligations, each other collateral agent in respect of such Series of Additional First Lien Priority Obligations named as Authorized Representative for such Series in the applicable Joinder Agreement.
“Company” has the meaning assigned to such term in the introductory paragraph of this Agreement.
“Controlling Agent” means (i) until the earlier of (x) the Discharge of Superpriority Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Superpriority Credit Agreement Agent and (ii) from and after the earlier of (x) the Discharge of Superpriority Credit Agreement Obligations and (y) the Non-Controlling Authorized Representative Enforcement Date, the Major Non-Controlling Authorized Representative.
“Controlling Secured Parties” means, with respect to any Shared Collateral, (i) at any time when the Superpriority Credit Agreement Agent is the Controlling Agent, the Superpriority Credit Agreement Secured Parties and (ii) at any other time, the Series of First Lien Priority Secured Parties whose Authorized Representative is the Controlling Agent for such Shared Collateral.
“DIP Financing Liens” has the meaning assigned to such term in Section 2.05(b). “DIP Lenders” has the meaning assigned to such term in Section 2.05(b). “Discharge” means, (i) payment in full in cash of the principal of, interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding at the rate set forth in the applicable debt documents, whether or not allowed or allowable in such proceeding) and premium (if any) on all applicable Obligations outstanding under the applicable debt documents, (ii) payment in full in cash of all other Obligations that are due and payable or otherwise accrued and owing under or in connection with the applicable Debt Documents at or prior to the time such principal and interest are paid or commitments referred to in the following clause (iii) are terminated (other than any contingent obligations for which no demand or claim has been made), and (iii) termination of all other commitments of the applicable First Lien Priority Secured Parties to extend credit under the applicable debt documents, in each case without giving effect to any limitations on the enforceability thereof, or the enforceability or allowance of the applicable Obligations under applicable Bankruptcy Laws or otherwise (including, without
limitation, with respect to interest, fees, or expenses which accrue after the commencement of any Insolvency or Liquidation Proceeding or which would accrue but for the operation of Bankruptcy Laws); provided that the Discharge of Superpriority Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of such Superpriority Credit Agreement Obligations, with Additional First Lien Priority Obligations secured by such Shared Collateral under an Additional First Lien Priority Document which has been designated in writing by the Superpriority Credit Agreement Agent (under the Superpriority Credit Agreement, so Refinanced) to the Major Non-Controlling Authorized Representative and each other Authorized Representative as the “Superpriority Credit Agreement” for purposes of this Agreement; provided further, that the Discharge of the 2025 Credit Agreement Obligations shall not be deemed to have occurred in connection with a Refinancing of such 2025 Credit Agreement Obligations, with Additional First Lien Priority Obligations secured by such Shared Collateral under an Additional First Lien Priority Document which has been designated in writing by the 2025 Credit Agreement Agent (under the 2025 Credit Agreement, so Refinanced) to each other Authorized Representative as the “2025 Credit Agreement” for purposes of this Agreement. The term “Discharged” shall have a corresponding meaning.
“Dutch Issuer” means Diebold Nixdorf Dutch Holding B.V.
“Enforcement Action” has the meaning assigned to such term in Section 2.02(a).
“Event of Default” means a “Default” as defined in the Superpriority Credit Agreement or the 2025 Credit Agreement or an “Event of Default” (or similarly defined term) as defined in any Secured Credit Document.
“First Lien Priority Obligations” means, collectively, (i) the Superpriority Credit Agreement Obligations and (ii) each Series of Additional First Lien Priority Obligations.
“First Lien Priority Secured Parties” means (i) the Superpriority Credit Agreement Secured Parties and (ii) the Additional First Lien Priority Secured Parties with respect to each Series of Additional First Lien Priority Obligations.
“First Lien Priority Security Documents” means, collectively, (i) the Superpriority Credit Agreement Collateral Documents and (ii) the Additional First Lien Priority Security Documents.
“German Obligor Pledged Equity” means, to the extent constituting Shared Collateral, the Equity Interests issued by Diebold Nixdorf Holding Germany GmbH.
“Grantors” means the Company and each other Subsidiary of the Company that has granted a Lien on the 2023 Credit Agreement Collateral to secure any Series of First Lien Priority Obligations. The Grantors existing on the date hereof are set forth in Annex I hereto. For the avoidance of doubt, Diebold Self-Service Solutions S.ar.l. is not a Grantor.
“Impairment” has the meaning assigned to such term in Section 1.03.
“Initial Additional Authorized Representative” means (i) the 2025 Credit Agreement Administrative Agent and the 2025 Credit Agreement Collateral Agent, as applicable, (ii) the 2025
U.S. Notes Trustee and the 2025 U.S. Collateral Agent, as applicable, (iii) the 2025 E.U. Notes
Trustee and the 2025 E.U. Notes Collateral Agent, as applicable, and (iv) the 2023 Credit Agreement Administrative Agent, and shall include any successor administrative agent and collateral agent as provided in the 2025 Credit Agreement, 2025 E.U. Notes Indenture, 2025 U.S. Notes Indenture and the 2023 Credit Agreement, as applicable.
“Initial Additional Collateral Agents” means (i) the 2025 Credit Agreement Collateral Agent, (ii) the 2025 U.S. Notes Collateral Agent, (iii) the 2025 E.U. Notes Collateral Agent and
(iv) the 2023 Credit Agreement Administrative Agent.
“Initial Additional First Lien Priority Agreements” means each of (i) the 2025 Credit Agreement (ii) the 2025 U.S. Notes Indenture, (iii) the 2025 E.U. Notes Indenture and (iv) the 2023 Credit Agreement.
“Initial Additional First Lien Priority Documents” means the Initial Additional First Lien Priority Agreements, the debt securities issued thereunder, the Initial Additional First Lien Priority Security Agreements and any security documents and other operative agreements evidencing or governing the Indebtedness thereunder, and the Liens securing such Indebtedness, including any agreement entered into for the purpose of securing the Initial Additional First Lien Priority Obligations.
“Initial Additional First Lien Priority Obligations” means the 2025 Credit Agreement Obligations, the 2025 U.S. Notes Obligations, the 2025 E.U. Notes Obligations and the 2023 Credit Agreement Obligations.
“Initial Additional First Lien Priority Secured Parties” means the Initial Additional Authorized Representatives and the holders of the Initial Additional First Lien Priority Obligations issued pursuant to the Initial Additional First Lien Priority Agreements.
“Initial Additional First Lien Priority Security Agreements” means (i) that certain security agreement, dated as of the date hereof, among the Company, GLAS Americas LLC, as collateral agent, and the other Grantors party thereto, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, (ii) the security agreement, dated as of the date hereof, among the Company, GLAS Americas LLC, as collateral agent, and the other Grantors party thereto, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time and (iii) the security agreement, dated as of the date hereof, among the Company, GLAS Americas LLC, as collateral agent, and the other Grantors party thereto, as amended, restated, amended and restated, extended, supplemented or otherwise modified from time to time, and (iv) the 2023 Credit Agreement Security Agreement.
“Insolvency or Liquidation Proceeding” means an assignment for the benefit of creditors relating to the Company or any Grantor, whether or not voluntary; or any case commenced by or against the Company or any Grantor under the Bankruptcy Code or any similar Bankruptcy Law, whether or not voluntary; or any proceeding by or against the Company or any Grantor seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, dissolution, marshaling of assets or liabilities, winding up, reorganization, arrangement, adjustment, administration, protection, relief, or composition of it or its debts, in each case, whether or not voluntary and whether or not involving bankruptcy or insolvency, or seeking the entry of an order for relief or the appointment
of a receiver, interim receiver, monitor, trustee, administrator or other similar official for it or for any substantial part of its property and assets, whether or not voluntary; or any event or action analogous to or having a substantially similar effect to any of the events or actions set forth in this definition (other than a solvent reorganization) under the law of any jurisdiction applicable to the Company or any Grantor.
“Intervening Creditor” has the meaning assigned to such term in Section 2.01(a). “Joinder Agreement” means a joinder to this Agreement substantially in the form of Annex II hereto required to be delivered by an Authorized Representative to each Collateral Agent and each Authorized Representative pursuant to Section 5.15 hereof in order to establish an additional Series of Additional First Lien Priority Obligations and add Additional First Lien Priority Secured Parties hereunder.
“Junior Lien Pari Passu Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Company, JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement, GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture, and U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Lien” means, with respect to any asset, (i) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge, assignment by way of security, or security interest in, on or of such asset, (ii) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (iii) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Major Non-Controlling Authorized Representative” means, with respect to any Shared Collateral, (i) until the Discharge of the 2025 Credit Agreement Obligations, the 2025 Credit Agreement Administrative Agent, and (ii) after the Discharge of the 2025 Credit Agreement Obligations, the Authorized Representative of the Series of Additional First Lien Priority Obligations that constitutes the largest outstanding principal amount of any then outstanding Series of First Lien Priority Obligations with respect to such Shared Collateral.
“Multi Lien Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Company, GLAS USA LLC, as administrative agent under Superpriority Credit Agreement, GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture, GLAS Americas LLC, as collateral agent under 2025 U.S. Notes Indenture, U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture, JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement, GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture, GLAS Americas LLC, as collateral agent
under the 2026 Notes Indenture, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Non-Controlling Authorized Representative” means, at any time with respect to any Shared Collateral, any Authorized Representative that is not the Controlling Agent at such time with respect to such Shared Collateral.
“Non-Controlling Authorized Representative Enforcement Date” means, with respect to any Non-Controlling Authorized Representative, the date which is 180 days (throughout which 180-day period such Non-Controlling Authorized Representative was the Major Non-Controlling Authorized Representative) after the occurrence of both (i) an Event of Default (or similarly defined term) (under and as defined in the Additional First Lien Priority Document under which such Non-Controlling Authorized Representative is the Authorized Representative), and (ii) each Collateral Agent’s and each other Authorized Representative’s receipt of written notice from such Non-Controlling Authorized Representative certifying that (x) such Non-Controlling Authorized Representative is the Major Non-Controlling Authorized Representative and that an Event of Default (or similarly defined term) (under and as defined in the Additional First Lien Priority Document under which such Non-Controlling Authorized Representative is the Authorized Representative) has occurred and is continuing and (y) the Additional First Lien Priority Obligations of the Series with respect to which such Non-Controlling Authorized Representative is the Authorized Representative are currently due and payable in full (whether as a result of acceleration thereof or otherwise) in accordance with the terms of the applicable Additional First Lien Priority Document; provided that the Non-Controlling Authorized Representative Enforcement Date shall be stayed and shall not occur and shall be deemed not to have occurred with respect to any Shared Collateral (1) at any time the Superpriority Credit Agreement Agent has commenced and is diligently pursuing any enforcement action with respect to such Shared Collateral or (2) at any time the Grantor which has granted a security interest in such Shared Collateral is then a debtor under or with respect to (or otherwise subject to) any Insolvency or Liquidation Proceeding.
“Non-Controlling Secured Parties” means, with respect to any Shared Collateral, the First Lien Priority Secured Parties which are not Controlling Secured Parties with respect to such Shared Collateral.
“Non-Released Multi-Lien Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Company, GLAS USA LLC, as administrative agent under Superpriority Credit Agreement, GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture, GLAS Americas LLC, as collateral agent under 2025 U.S. Notes Indenture, U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture, JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement, GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement, JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture, GLAS Americas LLC, as collateral agent under the 2026 Notes Indenture, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Obligations” means any principal, interest (including any interest accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest is an allowed claim under applicable state, provincial, territorial, federal or foreign law), other monetary obligations, penalties, fees, indemnifications, reimbursements (including reimbursement obligations with respect to letters of credit and banker’s acceptances), damages and other liabilities, and guarantees of payment of such principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities, payable under the documentation governing any Indebtedness.
“Possessory and Control Collateral” means any Shared Collateral in the possession or under the control of a Collateral Agent (or its agents or bailees), to the extent that possession or control thereof perfects a Lien thereon under the Uniform Commercial Code or any other applicable law of any jurisdiction. Possessory and Control Collateral includes, without limitation, any Certificated Securities, Promissory Notes, Instruments, and Chattel Paper, in each case, delivered to or in the possession of any Collateral Agent under the terms of the First Lien Priority Security Documents and deposit account(s), securities account(s) or commodity account(s), in each case, subject to an agreement which provides or purports to provide such Collateral Agent with “control” (within the meaning of Section 9-104 or 9-106 and/or 8-106 of the UCC, as applicable) over the deposit account(s), securities account(s) or commodity account(s) described therein.
“Refinance” means, in respect of any indebtedness, to refinance, extend, renew, defease, amend, amend and restate, increase, modify, supplement, restructure, refund, replace or repay, or to issue other indebtedness or enter alternative financing arrangements, in exchange or replacement for such indebtedness (in whole or in part), including by adding or replacing lenders, creditors, agents, borrowers and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness has been terminated and including, in each case, through any credit agreement, indenture or other agreement or instrument. “Refinanced” and “Refinancing” have correlative meanings.
“Secured Credit Document” means (i) the Superpriority Credit Agreement and each Loan Document (as defined in the Superpriority Credit Agreement), (ii) each Initial Additional First Lien Priority Document and (iii) each Additional First Lien Priority Document.
“Series” means (a) with respect to the First Lien Priority Secured Parties, each of (i) the Superpriority Credit Agreement Secured Parties (in their capacities as such), (ii) each group of Initial Additional First Lien Priority Secured Parties (in their capacities as such) represented by a common Authorized Representative (in its capacity as such for such Initial Additional First Lien Priority Secured Parties), and (iii) the Additional First Lien Priority Secured Parties that become subject to this Agreement after the date hereof that are represented by a common Authorized Representative (in its capacity as such for such Additional First Lien Priority Secured Parties) and
(b) with respect to any First Lien Priority Obligations, each of (i) the Superpriority Credit Agreement Obligations, (ii) any series of the Initial Additional First Lien Priority Obligations, and
(iii) any other series of the Additional First Lien Priority Obligations incurred pursuant to any Additional First Lien Priority Document, which pursuant to any Joinder Agreement, are to be
represented hereunder by a common Authorized Representative (in its capacity as such for such Additional First Lien Priority Obligations).
“Shared Collateral” means the 2023 Credit Agreement Collateral with respect to which a Lien is granted to the Superpriority Credit Agreement Agent and the Initial Additional Authorized Representatives pursuant to the Superpriority Credit Agreement Collateral Documents and the Initial Additional First Lien Priority Security Agreements, as applicable, as security for any First Lien Priority Obligations, which Lien is, at any time of determination, a valid and perfected Lien that has not been avoided, disallowed, set aside, invalidated, or subordinated pursuant to Chapter 5 of the Bankruptcy Code or any similar Bankruptcy Law. If more than two Series of First Lien Priority Obligations are outstanding at any time and the holders of less than all Series of First Lien Priority Obligations hold a valid and perfected Lien on any Shared Collateral at such time, then such Collateral (exclusive of any 2023 Credit Agreement Security Agreement Collateral) shall constitute Shared Collateral for those Series of First Lien Priority Obligations that hold a valid Lien on such Collateral at such time and shall not constitute Shared Collateral for any Series which does not have a valid and perfected Lien on such Collateral at such time.
“Superpriority Credit Agreement” means that certain credit agreement, dated as of the date hereof, by and among the Company, Diebold Nixdorf Holding Germany GmbH, as Borrower, the Lenders party thereto, the Superpriority Credit Agreement Administrative Agent, the Superpriority Credit Agreement Collateral Agent and the other parties from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“Superpriority Credit Agreement Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor administrative agent as provided in the Superpriority Credit Agreement.
“Superpriority Credit Agreement Agent” shall mean (i) the Superpriority Credit Agreement Administrative Agent and (ii) the Superpriority Credit Agreement Collateral Agent, as applicable, and shall include any successor administrative agent and collateral agent as provided in the Superpriority Credit Agreement.
“Superpriority Credit Agreement Collateral Agent” has the meaning assigned to it in the preamble of this Agreement and shall include any successor collateral agent as provided in the Superpriority Credit Agreement.
“Superpriority Credit Agreement Collateral Documents” means the “Security Documents” as defined in the Superpriority Credit Agreement, and any other documents or instruments granting (or purporting to grant) a Lien on real or personal property to secure any Superpriority Credit Agreement Obligations or granting rights or remedies with respect to such Liens, and each other agreement entered into in favor of the Superpriority Credit Agreement Agent for the purpose of securing any Superpriority Credit Agreement Obligations.
“Superpriority Credit Agreement Obligations” means all Obligations (as defined in the Superpriority Credit Agreement).
“Superpriority Credit Agreement Secured Parties” means the holders of Obligations under the Superpriority Credit Agreement, in such capacity, and the Superpriority Credit Agreement Agent.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in the State of New York; provided that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
SECTION 1.02. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument, other document, statute or regulation herein shall be construed as referring to such agreement, instrument, other document, statute or regulation as from time to time amended, supplemented or otherwise modified, (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, but shall not be deemed to include the subsidiaries of such Person unless express reference is made to such subsidiaries, (iii) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (iv) all references herein to Articles, Sections and Annexes shall be construed to refer to Articles, Sections and Annexes of this Agreement, (v) unless otherwise expressly qualified herein, the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vi) the term “or” is not exclusive.
SECTION 1.03. Impairments. It is the intention of the First Lien Priority Secured Parties of each Series that the holders of First Lien Priority Obligations of such Series (and not the First Lien Priority Secured Parties of any other Series) bear the risk of (i) any determination by a court of competent jurisdiction that (x) any of the First Lien Priority Obligations of such Series are unenforceable under applicable law or are subordinated to any other obligations (other than another Series of First Lien Priority Obligations), (y) any of the First Lien Priority Obligations of such Series do not have an enforceable security interest in any of the Collateral securing any other Series of First Lien Priority Obligations and/or (z) any intervening security interest exists securing any other obligations (other than another Series of First Lien Priority Obligations) on a basis ranking prior to the security interest of such Series of First Lien Priority Obligations but junior to the security interest of any other Series of First Lien Priority Obligations or (ii) the existence of any Collateral for any other Series of First Lien Priority Obligations that is not Shared Collateral (any such condition referred to in the foregoing clauses (i) or (ii) with respect to any Series of First Lien Priority Obligations, an “Impairment” of such Series); provided that the existence of a maximum claim with respect to any Mortgage (as defined in any of the Secured Credit Documents) that
applies to all First Lien Priority Obligations shall not be deemed to be an Impairment of any Series of First Lien Priority Obligations. In the event of any Impairment with respect to any Series of First Lien Priority Obligations, the results of such Impairment shall be borne solely by the holders of such Series of First Lien Priority Obligations, and the rights of the holders of such Series of First Lien Priority Obligations (including, without limitation, the right to receive distributions in respect of such Series of First Lien Priority Obligations pursuant to Section 2.01) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of the Series of such First Lien Priority Obligations subject to such Impairment. Additionally, in the event the First Lien Priority Obligations of any Series are modified pursuant to applicable law (including, without limitation, pursuant to Section 1129 of the Bankruptcy Code), any reference to such First Lien Priority Obligations or the First Lien Priority Security Documents governing such First Lien Priority Obligations shall refer to such obligations or such documents as so modified.
ARTICLE II
Priorities and Agreements with Respect to Shared Collateral
SECTION 2.01. Priority of Claims.
(a)Anything contained herein or in any of the Secured Credit Documents (other than, for the avoidance of doubt, the Multi Lien Intercreditor Agreement, Junior Lien Pari Passu Intercreditor Agreement and, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, the ABL Intercreditor Agreement) to the contrary notwithstanding (but subject to Section 1.03), if an Event of Default has occurred and is continuing, and the Controlling Agent is taking any Enforcement Action to enforce rights in respect of any Shared Collateral, or any distribution is made in respect of any Shared Collateral (including any adequate protection claims) in any Insolvency or Liquidation Proceeding of the Company or any other Grantor, or any First Lien Priority Secured Party receives any payment pursuant to the Multi Lien Intercreditor Agreement, Junior Lien Pari Passu Intercreditor Agreement, ABL Intercreditor Agreement or any other intercreditor agreement (other than this Agreement) with respect to any Shared Collateral, the proceeds of any such Enforcement Action in respect of any such Shared Collateral by the Controlling Agent or any such payments received by any First Lien Priority Secured Party (or received pursuant to any other intercreditor agreement), as applicable, and proceeds of any such distribution (subject, in the case of any such distribution, to the sentence immediately following) to which the First Lien Priority Obligations are entitled under any intercreditor agreement (other than this Agreement) (all proceeds of any such Enforcement Action, sale, collection or other insolvency or liquidation of any Shared Collateral and all proceeds of any such distribution being collectively referred to as “Proceeds”), shall be applied (i) FIRST, to the payment of all amounts owing to each Collateral Agent (in its capacity as such) pursuant to the terms of any Secured Credit Document and (ii) SECOND, subject to Section 1.03, to the payment in full of the First Lien Priority Obligations of each Series on a ratable basis, with such Proceeds to be applied to the First Lien Priority Obligations of a given Series in accordance with the terms of the applicable Secured Credit Documents. Notwithstanding the foregoing, with respect to any Shared Collateral for which a third party (other than a First Lien
Priority Secured Party) has a lien or security interest that is junior in priority to the security interest of any Series of First Lien Priority Obligations but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of any other Series of First Lien Priority Obligations (such third party, an “Intervening Creditor”), the value of any Shared Collateral or Proceeds allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Shared Collateral or Proceeds to be distributed in respect of the Series of First Lien Priority Obligations with respect to which such Impairment exists.
(b)It is acknowledged that the First Lien Priority Obligations of any Series may, subject to the limitations set forth in the then extant Secured Credit Documents, be increased, extended, renewed, replaced, restated, supplemented, restructured, repaid, refunded, Refinanced or otherwise amended or modified from time to time, all without affecting the priorities set forth in Section 2.01(a) or the provisions of this Agreement defining the relative rights of the First Lien Priority Secured Parties of any Series.
(c)Notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing any Series of First Lien Priority Obligations granted on the Shared Collateral and notwithstanding any provision of the Uniform Commercial Code of any jurisdiction, or any other applicable law or the Secured Credit Documents or any defect or deficiencies in the Liens securing the First Lien Priority Obligations of any Series or any other circumstance whatsoever (but, in each case, subject to Section 1.03), each First Lien Priority Secured Party hereby agrees that the Liens securing each Series of First Lien Priority Obligations on any Shared Collateral shall be of equal priority.
(d)Notwithstanding anything herein to the contrary, the Superpriority Credit Agreement Administrative Agent, the 2025 Credit Agreement Administrative Agent, the 2025 U.S. Notes Trustee and the 2025 E.U. Notes Trustee hereby agree that, upon (i) the exercise by the Supermajority Lenders under the Superpriority Credit Agreement of the right to release Collateral of German-domiciled Grantors pursuant to Section 8.2.1(c)(ii) of the Superpriority Credit Agreement, (ii) the exercise by the Supermajority Lenders under the 2025 Credit Agreement of the right to release Collateral of German-domiciled Grantors pursuant to Section 8.2.1(c)(ii) of the 2025 Credit Agreement, (iii) the exercise by the holders holding in excess of 66 2/3% of the aggregate principal amount of the outstanding 2025 Notes (as defined in the 2025 U.S. Notes Indenture) under the 2025 U.S. Notes Indenture of the right to release Collateral of German- domiciled Grantors pursuant to Section 9.02(f) of the 2025 U.S. Notes Indenture and (iv) the exercise by the holders holding in excess of 66 2/3% of the aggregate principal amount of the outstanding 2025 Notes (as defined in the 2025 E.U. Notes Indenture) under the 2025 E.U. Notes Indenture of the right to release Collateral of German-domiciled Grantors pursuant to Section 9.02(f) of the 2025 E.U. Notes Indenture, any Proceeds in respect of the German Obligor Pledged Equity shall be applied, (i) FIRST, to the payment of all amounts owing to each of the Superpriority Credit Agreement Agent and the 2023 Credit Agreement Administrative Agent (in its capacity as such) on a ratable basis pursuant to the terms of the Superpriority Credit Agreement and the 2023 Credit Agreement, as applicable, (ii) SECOND, to the payment in full of the Superpriority Credit Agreement Obligations and the 2023 Credit Agreement Obligations on a ratable basis, (iii) THIRD, to the payment of all amounts owing to each of the 2025 Credit Agreement Agent, the 2025 U.S. Notes Collateral Agent, the 2025 U.S. Notes Trustee, the 2025 E.U. Notes Collateral Agent and the 2025 E.U. Notes Trustee (in its capacity as such) on a ratable basis pursuant to the terms of the
2025 Credit Agreement, 2025 U.S. Notes Indenture and 2025 E.U. Notes Indenture, as applicable,
(iv) FOURTH, after the payment in full of the Superpriority Credit Agreement Obligations and the 2023 Credit Agreement Obligations, to the payment in full of the 2025 Credit Agreement Obligations, the 2025 U.S. Notes Obligations and the 2025 E.U. Notes Obligations on a ratable basis, and (v) FIFTH, after payment of the 2025 Credit Agreement Obligations, the 2025 U.S. Notes Obligations and the 2025 E.U. Notes Obligations, to the Company and the other Grantors or their successors or assigns, as their interests may appear, or to whomsoever may be lawfully entitled to receive the same under the Multi Lien Intercreditor Agreement or otherwise, or as a court of competent jurisdiction may direct.
SECTION 2.02. Actions with Respect to Shared Collateral; Prohibition on Contesting
Liens.
(a)Only the Controlling Agent shall act or refrain from acting with respect to any
Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral). At any time when the Superpriority Credit Agreement Agent is the Controlling Agent, no Additional First Lien Priority Secured Party shall or shall instruct any Collateral Agent to, and neither the Major Non-Controlling Authorized Representative nor any other Collateral Agent that is not the Controlling Agent shall (A) initiate any Insolvency or Liquidation Proceeding against any Grantor or any Subsidiary of any Grantor, (B) assert any marshaling, appraisal, valuation or other similar right that may otherwise be available to junior secured creditors, (C) exercise or seek to exercise any rights or remedies (including setoff or recoupment) with respect to any Shared Collateral, any other property of any Grantor or any subsidiary of any Grantor, or otherwise in any manner, or instituting any action or proceeding with respect to such rights and remedies (including any action of foreclosure), or (D) contest, protest or object to any foreclosure proceeding or other action brought with respect to the Shared Collateral or any other property of any Grantor or Subsidiary of any Grantor by Controlling Agent, the exercise of any right by the Controlling Agent (or any agent or sub-agent on behalf thereof) under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the Controlling Agent either is a party or may have rights as a third party beneficiary, or any other exercise by the Controlling Agent of any rights and remedies relating to the Shared Collateral, of any Grantor or Subsidiary of any Grantor, or otherwise in respect of the Shared Collateral (each an “Enforcement Action”), including without limitation the commencement of any judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, receiver, interim receiver, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any Additional First Lien Priority Security Document, applicable law or otherwise, it being agreed that only the Superpriority Credit Agreement Agent, acting in accordance with the Superpriority Credit Agreement Collateral Documents, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral at such time.
(b)With respect to any Shared Collateral at any time when the Major Non-Controlling Authorized Representative is the Controlling Agent, (i) the Controlling Agent shall not follow any
instructions with respect to such Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral) from any Non-Controlling Collateral Agent (or any other First Lien Priority Secured Party) and (ii) no Non-Controlling Authorized Representative or other First Lien Priority Secured Party shall or shall instruct the Controlling Agent to initiate any Enforcement Action, including without limitation to commence any judicial or non-judicial foreclosure proceedings with respect to, seek to have a trustee, receiver, interim receiver, monitor, liquidator or similar official appointed for or over, attempt any action to take possession of, exercise any right, remedy or power with respect to, or otherwise take any action to enforce its security interest in or realize upon, or take any other action available to it in respect of, any Shared Collateral (including with respect to any intercreditor agreement with respect to any Shared Collateral), whether under any First Lien Priority Security Document, applicable law or otherwise, it being agreed that only the Controlling Agent, acting in accordance with the Additional First Lien Priority Security Documents, respectively, shall be entitled to take any such actions or exercise any such remedies with respect to Shared Collateral.
(c)Notwithstanding the equal priority of the Liens securing each Series of First Lien Priority Obligations, the Controlling Agent may deal with the Shared Collateral as if such Controlling Agent had a senior Lien on such Collateral. No Non-Controlling Authorized Representative or Non-Controlling Secured Party will contest, protest or object to any foreclosure proceeding or action brought by the Controlling Agent or the Controlling Secured Party or any other exercise by the Controlling Agent or the Controlling Secured Party of any rights and remedies relating to the Shared Collateral, or to cause the Controlling Agent to do so. The foregoing shall not be construed to limit the rights and priorities of any First Lien Priority Secured Party, the Controlling Agent or any Authorized Representative with respect to any Collateral not constituting Shared Collateral.
(d)Each of the First Lien Priority Secured Parties agrees that it will not (and hereby waives any right to) question or contest or support any other Person in contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the perfection, priority, validity, attachment or enforceability of a Lien held by or on behalf of any of the First Lien Priority Secured Parties in all or any part of the Collateral, or the provisions of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any Collateral Agent or any Authorized Representative to enforce this Agreement.
SECTION 2.03. No Interference; Payment Over.
(a)Each First Lien Priority Secured Party agrees that (i) it will not challenge or question in any proceeding the validity or enforceability of any First Lien Priority Obligations of any Series or any First Lien Priority Security Document or the validity, attachment, perfection or priority of any Lien under any First Lien Priority Security Document or the validity or enforceability of the priorities, rights or duties established by or other provisions of this Agreement,
(ii) it will not take or cause to be taken any action the purpose or intent of which is, or could be, to interfere, hinder or delay, in any manner, whether by judicial proceedings or otherwise, any sale, transfer or other disposition of the Shared Collateral by the Controlling Agent, (iii) except as provided in Section 2.02, it shall have no right to (A) direct the Controlling Agent or any other First Lien Priority Secured Party to exercise, and shall not exercise, any right, remedy or power with respect to any Shared Collateral (including pursuant to any intercreditor agreement) or (B)
consent to the exercise by the Controlling Agent or any other First Lien Priority Secured Party of any right, remedy or power with respect to any Shared Collateral, (iv) it will not institute any suit or assert in any suit, bankruptcy, Insolvency or Liquidation Proceeding or other proceeding any claim against the Controlling Agent or any other First Lien Priority Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise with respect to any Shared Collateral, and none of the Controlling Agent, or any other First Lien Priority Secured Party shall be liable for any action taken or omitted to be taken by the Controlling Agent or other First Lien Priority Secured Party with respect to any Shared Collateral in accordance with the provisions of this Agreement, (v) it will not seek, and hereby waives any right, to have any Shared Collateral or any part thereof marshaled upon any foreclosure or other disposition of such Collateral and (vi) it will not attempt, directly or indirectly, whether by judicial proceedings or otherwise, to challenge the enforceability of any provision of this Agreement; provided that nothing in this Agreement shall be construed to prevent or impair the rights of any of the Controlling Agent or any other First Lien Priority Secured Party to enforce this Agreement.
(b)Each First Lien Priority Secured Party hereby agrees that if it shall obtain possession of any Shared Collateral or shall realize any proceeds or payment in respect of any such Shared Collateral, pursuant to any First Lien Priority Security Document or by the exercise of any rights available to it under applicable law or in any Insolvency or Liquidation Proceeding commenced by or relating to a Grantor or through any other exercise of remedies (including pursuant to any intercreditor agreement), at any time prior to the Discharge of each of the First Lien Priority Obligations, then it shall hold such Shared Collateral, proceeds or payment in trust for the other First Lien Priority Secured Parties and promptly transfer such Shared Collateral, proceeds or payment, as the case may be, to the Controlling Agent, to be distributed in accordance with the provisions of Section 2.01 hereof.
SECTION 2.04. Automatic Release of Liens.
(a)If, at any time the Controlling Agent forecloses upon or otherwise exercises remedies against any Shared Collateral resulting in a sale or disposition thereof, then (whether or not any Insolvency or Liquidation Proceeding is pending at the time) the Liens in favor of the other Collateral Agents for the benefit of each Series of First Lien Priority Secured Parties upon such Shared Collateral will automatically be released and discharged as and when, but only to the extent, such Liens of the Controlling Agent on such Shared Collateral are released and discharged; provided that any proceeds of any Shared Collateral realized therefrom shall be applied pursuant to Section 2.01.
(b)Each Collateral Agent and each Authorized Representative agrees to execute and deliver (at the sole cost and expense of the Grantors) all such authorizations and other instruments as shall reasonably be requested by the Controlling Agent or the Company to evidence and confirm any release of Shared Collateral provided for in this Section.
SECTION 2.05. Certain Agreements with Respect to Insolvency or Liquidation Proceedings.
(a)This Agreement shall continue in full force and effect notwithstanding the commencement of any proceeding under the Bankruptcy Code or any similar or equivalent provision of any other Bankruptcy Law by or against the Company or any of its Subsidiaries.
(b)If the Company and/or any other Grantor shall become subject to an Insolvency or Liquidation Proceeding and shall, as debtor(s)-in-possession, move for approval of financing (“DIP Financing”) to be provided by one or more lenders (the “DIP Lenders”) under Section 363 or 364 of the Bankruptcy Code or any similar or equivalent provision of any other Bankruptcy Law, including for the avoidance of doubt, any such DIP Financing provided by the First Lien Priority Secured Parties as permitted under this Agreement, or the use of cash collateral under Section 363 of the Bankruptcy Code or any similar or equivalent provision of any other Bankruptcy Law, each First Lien Priority Secured Party (other than any Controlling Secured Party or the Authorized Representative of any Controlling Secured Party) agrees that it will raise no objection to any such financing or to the Liens on the Shared Collateral securing the same (“DIP Financing Liens”) or to any use of cash collateral that constitutes Shared Collateral, unless the Controlling Agent shall then oppose or object to such DIP Financing or such DIP Financing Liens or use of cash collateral (and (i) to the extent that such DIP Financing Liens are senior to the Liens on any such Shared Collateral for the benefit of the Controlling Secured Parties, each Non-Controlling Secured Party will subordinate its Liens with respect to such Shared Collateral on the same terms as the Liens of the Controlling Secured Parties (other than any Liens of any First Lien Priority Secured Parties constituting DIP Financing Liens) are subordinated thereto, and (ii) to the extent that such DIP Financing Liens rank pari passu with the Liens on any such Shared Collateral granted to secure the First Lien Priority Obligations of the Controlling Secured Parties, each Non- Controlling Secured Party will confirm the priorities with respect to such Shared Collateral as set forth herein), in each case so long as (A) the First Lien Priority Secured Parties of each Series retain the benefit of their Liens on all such Shared Collateral pledged to the DIP Lenders, including proceeds thereof arising after the commencement of such proceeding, with the same priority vis- à-vis all the other First Lien Priority Secured Parties (other than any Liens of the First Lien Priority Secured Parties constituting DIP Financing Liens) as existed prior to the commencement of the Insolvency or Liquidation Proceeding, (B) the First Lien Priority Secured Parties of each Series are granted Liens on any additional collateral pledged to any First Lien Priority Secured Parties as adequate protection or otherwise in connection with such DIP Financing or use of cash collateral, with the same priority vis-à-vis the First Lien Priority Secured Parties as set forth in this Agreement,
(C) if any amount of such DIP Financing or cash collateral is applied to repay or exchange (including, for the avoidance of doubt, pursuant to a “roll up”) any of the First Lien Priority Obligations, such amount is applied pursuant to Section 2.01, and (D) if any First Lien Priority Secured Parties are granted adequate protection, including in the form of periodic payments, in connection with such DIP Financing or use of cash collateral, the proceeds of such adequate protection are applied pursuant to Section 2.01; provided that the First Lien Priority Secured Parties receiving adequate protection shall not object to any other First Lien Priority Secured Party receiving adequate protection comparable to any adequate protection granted to such First Lien Priority Secured Parties in connection with a DIP Financing or use of cash collateral.
(c)Notwithstanding the foregoing, each of the 2025 Credit Agreement Agent, the 2025 Credit Agreement Secured Parties, the 2025 U.S. Notes Trustee, the 2025 U.S. Notes Secured Parties, the 2025 E.U. Notes Trustee and the 2025 E.U. Notes Secured Parties shall be permitted to propose or support DIP Financing secured by Liens on the Shared Collateral so long as the 2025
Credit Agreement Secured Parties, the 2025 U.S. Notes Secured Parties, and the 2025 E.U. Notes Secured Parties are provided a reasonable opportunity to participate pro rata in any DIP Financing on identical terms. After the occurrence of the Non-Controlling Authorized Representative Enforcement Date, if the 2025 U.S. Notes Secured Parties or the 2025 E.U. Notes Secured Parties are Non-Controlling Secured Parties, then nothing in this Agreement shall restrict the 2025 U.S. Notes Trustee, the 2025 U.S. Notes Collateral Agent, the 2025 U.S. Notes Secured Parties, the 2025 E.U. Notes Trustee, the 2025 U.S. Notes Collateral Agent or the 2025 E.U. Notes Secured Parties from objecting to any DIP Financing proposed by any party that is not the 2025 Credit Agreement Agent, the 2025 Credit Agreement Secured Parties, the 2025 U.S. Notes Trustee, the 2025 U.S. Notes Secured Parties, the 2025 E.U. Notes Trustee and the 2025 E.U. Notes Secured Parties. Notwithstanding anything to the contrary in this Agreement, neither the 2023 Credit Agreement Administrative Agent nor the 2023 Secured Parties shall be permitted to propose or support a DIP Financing.
SECTION 2.06. Reinstatement. In the event that any of the First Lien Priority Obligations shall be paid in full and such payment or any part thereof shall subsequently, for whatever reason (including an order or judgment for disgorgement of a preference under the Bankruptcy Code or any similar law, or the settlement of any claim in respect thereof), be required to be returned or repaid, the terms and conditions of this Article II shall be fully applicable thereto until all such First Lien Priority Obligations shall again have been paid in full in cash.
SECTION 2.07. Insurance. As between the First Lien Priority Secured Parties, the Controlling Agent shall have the right to adjust or settle any insurance policy or claim covering or constituting Shared Collateral in the event of any loss thereunder and to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral.
SECTION 2.08. Refinancings. The First Lien Priority Obligations of any Series may be Refinanced, in whole or in part, in each case, without notice to, or the consent (except to the extent a consent is otherwise required to permit the Refinancing transaction under any Secured Credit Document) of any First Lien Priority Secured Party of any other Series, all without affecting the priorities provided for herein or the other provisions hereof; provided that the Authorized Representative of the holders of any such Refinancing indebtedness shall have executed a Joinder Agreement on behalf of the holders of such Refinancing indebtedness.
SECTION 2.09. Possessory and Control Collateral Agent as Gratuitous Bailee for Perfection.
(a)Possessory and Control Collateral shall be delivered, or control thereof transferred, to the Superpriority Credit Agreement Agent and each Collateral Agent agrees to hold all Possessory and Control Collateral that is in its possession or control (or in the possession or control of, or otherwise notated in favor of, its agents or bailees) as gratuitous bailee (such bailment being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2), 9-313(c), 9-104, 9-105, 9-106 and 9-107 of the Uniform Commercial Code, to the extent applicable) for the benefit of each other First Lien Priority Secured Party and any assignee solely for the purpose of perfecting the security interest granted in such Possessory and Control Collateral, in each case, subject to the terms and conditions of this Section 2.09; provided that at any time the Superpriority Credit Agreement Agent is not the Controlling Agent, the Superpriority Credit Agreement Agent shall,
at the request of the new Controlling Agent, promptly deliver or transfer control of all such Possessory and Control Collateral to such new Controlling Agent together with any necessary endorsements (or otherwise allow such new Controlling Agent to obtain control of such Possessory and Control Collateral). The Company shall take such further action as is required to effectuate the transfer contemplated hereby and shall indemnify each Collateral Agent for loss or damage suffered by such Collateral Agent as a result of such transfer except for loss or damage suffered by such Collateral Agent as a result of its own gross negligence or willful misconduct as determined by a final nonappealable judgment of a court of competent jurisdiction.
(b)Each Collateral Agent agrees to hold any Shared Collateral constituting Possessory and Control Collateral, from time to time in its possession, as gratuitous bailee (such bailment being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2), 9-313(c), 9-104, 9-105, 9-106 and 9-107 of the Uniform Commercial Code, to the extent applicable) for the benefit of each other First Lien Priority Secured Party and any assignee, solely for the purpose of perfecting the security interest granted in such Possessory and Control Collateral, if any, in each case, subject to the terms and conditions of this Section 2.09.
(c)The duties or responsibilities of each Collateral Agent under this Section 2.09 shall be limited solely to holding any Shared Collateral constituting Possessory and Control Collateral as gratuitous bailee (such bailment being intended, among other things, to satisfy the requirements of Sections 8-301(a)(2), 9-313(c), 9-104, 9-105, 9-106 and 9-107 of the Uniform Commercial Code, to the extent applicable) for the benefit of each other First Lien Priority Secured Party for purposes of perfecting the Lien held by such First Lien Priority Secured Party thereon.
SECTION 2.10. Amendments to Security Documents.
(a)Without the prior written consent of the Superpriority Credit Agreement Agent, each Additional First Lien Priority Secured Party agrees that no Additional First Lien Priority Security Document may be amended, amended and restated, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Additional First Lien Priority Security Document would be prohibited by, or would require any Grantor to act or refrain from acting in a manner that would violate, any of the terms of this Agreement.
(b)Without the prior written consent of the Controlling Agent, the Superpriority Credit Agreement Agent agrees that no Superpriority Credit Agreement Collateral Document may be amended, amended and restated, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Superpriority Credit Agreement Collateral Document would be prohibited by, or would require any Grantor to act or refrain from acting in a manner that would violate, any of the terms of this Agreement.
(c)In making determinations required by this Section 2.10, each Authorized Representative may conclusively rely on a certificate of an Authorized Officer of the Company.
(d)In the event that the Controlling Agent enters into any amendment, waiver or consent in respect of any of the First Lien Priority Security Documents for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any First
Lien Priority Security Document or changing in any manner the rights or any parties thereunder, then such amendment, waiver or consent shall apply automatically to any comparable provision of any other First Lien Priority Security Document without the consent of or any action by any First Lien Priority Secured Party (with all such amendments, waiver and modifications subject to the terms hereof); provided that (other than with respect to amendments, modifications or waivers that secure additional extensions of credit and add additional secured creditors and do not violate the express provision of any First Lien Priority Agreement), (i) no such amendment, waiver or consent shall have the effect of removing assets subject to the Lien of any First Lien Priority Security Document, except to the extent that a release of such Lien is permitted by Section 2.04 (or by the existing terms of such other First Lien Priority Security Document subject to such modification), (ii) any such amendment, waiver or consent that materially and adversely affects the rights of the Non-Controlling Secured Parties (other than any Authorized Representative) and does not affect the Controlling Secured Parties in a like or similar manner shall not apply to the First Lien Priority Security Documents without the consent of the Authorized Representatives for the Non- Controlling Secured Parties, (iii) no such amendment, waiver, or consent with respect to any provision applicable to an Authorized Representative for any Non-Controlling Secured Parties shall be made without the prior written consent of such Authorized Representative and (iv) notice of such amendment, waiver or consent shall be given the Authorized Representatives (other than the Controlling Agent) no later than 30 days after its effectiveness, provided that the failure to give such notice shall not affect the effectiveness and validity thereof.
ARTICLE III
Existence and Amounts of Liens and Obligations
SECTION 3.01. Determinations with Respect to Amounts of Liens and Obligations. Whenever a Collateral Agent or any Authorized Representative shall be required, in connection with the exercise of its rights or the performance of its obligations hereunder, to determine the existence or amount of any First Lien Priority Obligations of any Series, or the Shared Collateral subject to any Lien securing the First Lien Priority Obligations of any Series, it may request that such information be furnished to it in writing by each other Authorized Representative or Collateral Agent and shall be entitled to make such determination or not make any determination on the basis of the information so furnished; provided, however, that if an Authorized Representative or a Collateral Agent shall fail or refuse reasonably promptly to provide the requested information, the requesting Collateral Agent or Authorized Representative shall be entitled to make any such determination by such method as it may, in the exercise of its good faith judgment, determine, including by reliance upon a certificate of the Company. Each Collateral Agent and each Authorized Representative may rely conclusively, and shall be fully protected in so relying, on any determination made by it in accordance with the provisions of the preceding sentence (or as otherwise directed by a court of competent jurisdiction) and shall have no liability to any Grantor, any First Lien Priority Secured Party or any other person as a result of such determination.
ARTICLE IV
The Controlling Agent
SECTION 4.01. Authority.
(a)Notwithstanding any other provision of this Agreement, nothing herein shall be construed to impose any fiduciary or other duty on any Controlling Agent to any Non-Controlling Secured Party or give any Non-Controlling Secured Party the right to direct any Controlling Agent, except that each Controlling Agent shall be obligated to distribute proceeds of any Shared Collateral in accordance with Section 2.01 hereof.
(b)In furtherance of the foregoing, each Non-Controlling Secured Party acknowledges and agrees that the Controlling Agent shall be entitled, for the benefit of the First Lien Priority Secured Parties, to sell, transfer or otherwise dispose of or deal with any Shared Collateral as provided herein and in the First Lien Priority Security Documents, as applicable, pursuant to which the Controlling Agent is the collateral agent for such Shared Collateral, without regard to any rights to which the Non-Controlling Secured Parties would otherwise be entitled as a result of the First Lien Priority Obligations held by such Non-Controlling Secured Parties. Without limiting the foregoing, each Non-Controlling Secured Party agrees that neither the Controlling Agent nor any other First Lien Priority Secured Party shall have any duty or obligation first to marshal or realize upon any type of Shared Collateral (or any other Collateral securing any of the First Lien Priority Obligations), or to sell, dispose of or otherwise liquidate all or any portion of such Shared Collateral (or any other Collateral securing any First Lien Priority Obligations), in any manner that would maximize the return to the Non-Controlling Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Non-Controlling Secured Parties from such realization, sale, disposition or liquidation. Each of the First Lien Priority Secured Parties waives any claim it may now or hereafter have against any Collateral Agent or the Authorized Representative of any other Series of First Lien Priority Obligations or any other First Lien Priority Secured Party of any other Series arising out of (i) any actions which any Collateral Agent, Authorized Representative or the First Lien Priority Secured Parties take or omit to take (including, actions with respect to the creation, perfection or continuation of Liens on any Collateral, actions with respect to the foreclosure upon, sale, release or depreciation of, or failure to realize upon, any of the Collateral and actions with respect to the collection of any claim for all or any part of the First Lien Priority Obligations from any account debtor, guarantor or any other party) in accordance with the First Lien Priority Security Documents or any other agreement related thereto or to the collection of the First Lien Priority Obligations or the valuation, use, protection or release of any security for the First Lien Priority Obligations, (ii) any election by the Controlling Agent or any holders of First Lien Priority Obligations, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b) of the Bankruptcy Code or (iii) subject to Section 2.05, any borrowing by, or grant of a security interest or administrative expense priority under Section 364 of the Bankruptcy Code or any equivalent provision of any other Bankruptcy Law, by the Company or any of its Subsidiaries, as debtor-in-possession. Notwithstanding any other provision of this Agreement, the Controlling Agent shall not accept any Shared Collateral in full or partial satisfaction of any First Lien Priority Obligations pursuant to Section 9-620 of the Uniform
Commercial Code of any jurisdiction, without the consent of each Authorized Representative representing holders of First Lien Priority Obligations for whom such Collateral constitutes Shared Collateral.
SECTION 4.02. Power of Attorney – Foreign Security Documents.
Subject to Section 4.01, each Collateral Agent hereby gives the Controlling Agent an irrevocable power of attorney, with the right of substitution, to perform all acts, including acts of disposition, on behalf of that Collateral Agent which that Collateral Agent is entitled to exercise or perform under the First Lien Priority Security Documents governed by non-U.S. law (the “Foreign Security Documents”), the performance of which acts, in the sole opinion of the Controlling Agent, is reasonably necessary or beneficial to have the full benefit of its rights and entitlements under this Agreement with respect to the Collateral encumbered by such Foreign Security Documents, in each case in accordance with and within the limits of the relevant Foreign Security Documents. In acting on behalf of a Collateral Agent pursuant to this power of attorney with respect to the Foreign Security Documents, the Controlling Agent may act as counterparty of that Collateral Agent.
ARTICLE V
Miscellaneous
SECTION 5.01. Notices. All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopy, as follows:
(a)If to the Company or any other Grantor: Diebold Nixdorf, Incorporated
5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Telecopy No: (330) 490-4450 Attention: James Barna
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
Sullivan & Cromwell LLP 125 Broad Street
New York, New York 10004 Telecopy No: (212) 558-3588
Confirmation No: (212) 558-4000 Attention: Ari Blaut
(b)If to the Superpriority Credit Agreement Administrative Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS USA LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(c)If to the Superpriority Credit Agreement Collateral Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(d)If to the 2025 U.S. Notes Trustee, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Attention: David A. Schlabach
Email: david.schlabach@usbank.com
(e)If to the 2025 U.S. Notes Collateral Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(f)If to the 2025 E.U. Notes Trustee, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Attention: David A. Schlabach
Email: david.schlabach@usbank.com
(g)If to the 2025 E.U. Notes Collateral Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(h)If to the 2025 Credit Agreement Administrative Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
Address for Notices for matters other than Foreign Currency Advances: 131 South Dearborn St., Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing Email: jpm.agency.cri@jpmorgan.com
Agency Withholding Tax Inquiries:
Email: agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Intralinks:
Email: covenant.compliance@jpmchase.com
Address for Notices for matters relating to Foreign Currency Advances: JPMorgan Chase Bank
25 Bank Street, Canary Wharf, London, E14 5JP U.K.
Attention: Alston Lobo and Mengkang Pan; Loan and Agency Telecopy: +44 (0) (207) 777-2360
Telephone: +44 (0) (207) 742-1000 (switchboard)
Email: loan_and_agency_london@jpmorgan.com
(i)If to the 2025 Credit Agreement Collateral Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(j)If to the 2023 Credit Agreement Administrative Agent, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
Address for Notices for matters other than Foreign Currency Advances: 131 South Dearborn St., Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing Email: jpm.agency.cri@jpmorgan.com
Agency Withholding Tax Inquiries:
Email: agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Intralinks:
Email: covenant.compliance@jpmchase.com
Address for Notices for matters relating to Foreign Currency Advances: JPMorgan Chase Bank
25 Bank Street, Canary Wharf, London, E14 5JP U.K.
Attention: Alston Lobo and Mengkang Pan; Loan and Agency Telecopy: +44 (0) (207) 777-2360
Telephone: +44 (0) (207) 742-1000 (switchboard)
Email: loan_and_agency_london@jpmorgan.com
(k)If to any other Additional Authorized Representative, to it at the address set forth in the applicable Joinder Agreement.
Any party hereto may change its address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt (if a Business Day) and on the next Business Day thereafter (in all other cases) if delivered by hand or overnight courier service or sent by telecopy or on the date three Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 5.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 5.01. As agreed to in writing among each Collateral Agent and each Authorized Representative from time to time, notices and other communications may also be delivered by e-mail to the e-mail address of a representative of the applicable Person provided from time to time by such Person. Each of the Initial Additional Authorized Representatives agrees to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. Each of the Initial Additional Authorized Representatives shall not be liable for any losses, costs or expenses arising directly or indirectly from such Initial Additional Authorized Representative’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to any Initial Additional Authorized Representative, including without limitation the risk of such Initial Additional Authorized Representative acting on unauthorized instructions, and the risk or interception and misuse by third parties.
SECTION 5.02. Waivers; Amendment; Joinder Agreements.
(a)No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by Section 5.02(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b)Neither this Agreement nor any provision hereof may be terminated, waived, amended or modified (other than pursuant to any Joinder Agreement) except pursuant to an agreement or agreements in writing entered into by each Authorized Representative and each Collateral Agent (and with respect to any such termination, waiver, amendment or modification which by the terms of this Agreement requires the Company’s consent or which increases the obligations or reduces the rights of the Company or any other Grantor, with the consent of the Company).
(c)Notwithstanding the foregoing, without the consent of any First Lien Priority Secured Party, any Authorized Representative may become a party hereto by execution and delivery of a Joinder Agreement in accordance with Section 5.15 and upon such execution and delivery, such Authorized Representative and the Additional First Lien Priority Secured Parties and Additional First Lien Priority Obligations of the Series for which such Authorized Representative is acting shall be subject to the terms hereof and the terms of the Additional First Lien Priority Security Documents applicable thereto.
(d)Notwithstanding the foregoing, without the consent of any other Authorized Representative or First Lien Priority Secured Party, the Collateral Agents may effect amendments and modifications to this Agreement (which may be in the form of an amendment and restatement) to the extent necessary to reflect any incurrence of any Additional First Lien Priority Obligations in compliance with the Superpriority Credit Agreement and the other Secured Credit Documents.
SECTION 5.03. Termination. Upon the Discharge of the 2023 Credit Agreement Obligations, this Agreement (including all provisions, consents and agreements herein) shall automatically terminate without notice to or action by any party hereto or any other Person, and shall cease to be in any force or effect in any and all respects.
SECTION 5.04. Parties in Interest. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, as well as the other First Lien Priority Secured Parties, all of whom are intended to be bound by, and to be third party beneficiaries of, this Agreement.
SECTION 5.05. Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
SECTION 5.06. Counterparts. This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by facsimile or other electronic transmission shall be effective as delivery of a manually executed counterpart hereof.
SECTION 5.07. Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall endeavor in good faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 5.08. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 5.09. Submission to Jurisdiction Waivers; Consent to Service of Process. Each Collateral Agent and each Authorized Representative, on behalf of itself and the First Lien Priority Secured Parties of the Series for whom it is acting, irrevocably and unconditionally:
(a)submits for itself and its property in any legal action or proceeding relating to this Agreement and the First Lien Priority Security Documents, or for recognition and enforcement of any judgment in respect thereof, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the Borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the Borough of Manhattan), and any appellate court from any thereof; provided that nothing contained herein will prevent any Collateral Agent or First Lien Priority Secured Parties from bringing any action to enforce any award or judgment or exercise any right under the First Lien Priority Security Documents or against any Collateral or any other property of any Grantor in accordance with the terms hereof in any other forum in which jurisdiction can be established;
(b)consents that any such action or proceeding may be brought in such courts and waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in Section 5.09(a);
(c)agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to such Person (or its Authorized Representative) at the address set forth in Section 5.01;
(d)agrees that nothing herein shall affect the right of any other party hereto (or any First Lien Priority Secured Party) to effect service of process in any other manner permitted by law or shall limit the right of any party hereto (or any First Lien Priority Secured Party) to sue in any other jurisdiction; and
(e)waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this Section 5.09 any special, exemplary, punitive or consequential damages.
SECTION 5.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR FOR ANY COUNTERCLAIM THEREIN.
SECTION 5.11. Headings. Article, Section and Annex headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 5.12. Conflicts.
(a)In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any of the First Lien Priority Security Documents (other than, for the avoidance of doubt, the Multi Lien Intercreditor Agreement, Junior Lien Pari Passu Intercreditor Agreement and, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, the ABL Intercreditor Agreement) or any of the other Secured Credit Documents, the provisions of this Agreement shall control.
(b)In the event of any conflict between the provisions of this Agreement and the Non- Released Multi Lien Intercreditor Agreement, the Non-Released Multi Lien Intercreditor Agreement shall control and govern. In the event of any conflict between the provisions of this Agreement and the agreements in the ABL Intercreditor Agreement among the holders of ABL Obligations and Term Debt Obligations (each as defined in the ABL Intercreditor Agreement), the provisions of the ABL Intercreditor Agreement shall control and govern.
SECTION 5.13. Provisions Solely to Define Relative Rights. The provisions of this Agreement are and are intended solely for the purpose of defining the relative rights of the First Lien Priority Secured Parties in relation to one another. None of the Company, any other Grantor or any other creditor thereof shall have any rights or obligations hereunder, except as expressly provided in this Agreement (provided that nothing in this Agreement (other than Sections 2.04, 2.05, 2.08, 2.09, 2.10 or Article V) is intended to or will amend, waive or otherwise modify the provisions of the Superpriority Credit Agreement or any Additional First Lien Priority Documents), and none of the Company or any other Grantor may rely on the terms hereof (other than Sections 2.04, 2.05, 2.08, 2.09, 2.10 and Article V). Nothing in this Agreement is intended to or shall impair the obligations of any Grantor, which are absolute and unconditional, to pay the First Lien Priority Obligations as and when the same shall become due and payable in accordance with their terms.
SECTION 5.14. Application of Proceeds. Any Shared Collateral, proceeds thereof, payment with respect thereto or distribution in respect of a claim secured thereby received by the Controlling Agent in accordance with the Junior Lien Pari Passu Intercreditor Agreement shall be applied by the Controlling Agent in accordance with the terms of the Multi Lien Intercreditor Agreement, Junior Lien Pari Passu Intercreditor Agreement and, as between the holders of the
ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, the ABL Intercreditor Agreement.
SECTION 5.15. Additional First Lien Debt. To the extent, but only to the extent permitted by the provisions of the Superpriority Credit Agreement and the Additional First Lien Priority Documents, the Company may incur additional indebtedness after the date hereof that is permitted by the Superpriority Credit Agreement and the Additional First Lien Priority Documents to be incurred and secured on an equal and ratable basis by the Liens securing the First Lien Priority Obligations (such indebtedness referred to as “Additional First Lien Debt”). Any such Additional First Lien Debt may be secured by a Lien and may be Guaranteed by the Grantors on a junior basis, in each case under and pursuant to the Additional First Lien Priority Documents, if and subject to the condition that the Authorized Representative of any such Additional First Lien Debt, acting on behalf of the holders of such Additional First Lien Debt (such Authorized Representative and holders in respect of any Additional First Lien Debt being referred to as the “Additional First Lien Debt Parties”), becomes a party to this Agreement by satisfying the conditions set forth in clauses
(i) through (iv) of the immediately succeeding paragraph.
In order for an Additional First Lien Debt Representative to become a party to this Agreement,
(i)such Additional First Lien Debt Representative, each Collateral Agent, each Authorized Representative and each Grantor shall have executed and delivered an instrument substantially in the form of Annex II (with such changes as may be reasonably approved by such Collateral Agent and Additional First Lien Debt Representative) pursuant to which such Additional First Lien Debt Representative becomes an Authorized Representative hereunder, and the Additional First Lien Debt in respect of which such Additional First Lien Debt Representative is the Authorized Representative and the related Additional First Lien Debt Parties become subject hereto and bound hereby;
(ii)the Company shall have (x) delivered to each Collateral Agent true and complete copies of each of the Additional First Lien Priority Documents relating to such Additional First Lien Debt, certified as being true and correct by an Authorized Officer of the Company and (y) identified in a certificate of an authorized officer the obligations to be designated as Additional First Lien Priority Obligations and the initial aggregate principal amount or face amount thereof;
(iii)all filings, recordations and/or amendments or supplements to the First Lien Priority Security Documents necessary or desirable in the reasonable judgment of the Additional First Lien Debt Representative to create and perfect the Liens securing the relevant obligations relating to such Additional First Lien Debt shall have been made, executed and/or delivered (or, with respect to any such filings or recordations, acceptable provisions to perform such filings or recordations shall have been taken in the reasonable judgment of the Additional First Lien Debt Representative), and all fees and taxes in connection therewith shall have been paid (or acceptable provisions to make such payments have been taken in the reasonable judgment of the Additional First Lien Debt Representative); and
(iv)the Additional First Lien Priority Documents, as applicable, relating to such Additional First Lien Debt shall provide, in a manner reasonably satisfactory to each Collateral Agent, that each Additional First Lien Debt Party with respect to such Additional First Lien Debt will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Additional First Lien Debt.
Each Authorized Representative acknowledges and agrees that upon execution and delivery of a Joinder Agreement substantially in the form of Annex II by an Additional First Lien Debt Representative and each Grantor in accordance with this Section 5.15, the Initial Additional Authorized Representative will continue to act in its capacity as Major Non-Controlling Authorized Representative in respect of the then existing Authorized Representatives (other than the Superpriority Credit Agreement Agent) and such additional Authorized Representative.
SECTION 5.16. Agent Capacities. Except as expressly provided herein or in the Superpriority Credit Agreement Collateral Documents, GLAS USA LLC is acting not in its individual capacity but solely in the capacity of Administrative Agent solely for the Superpriority Credit Agreement Secured Parties. Except as expressly provided herein or in the Additional First Lien Priority Security Documents, (a) U.S. Bank Trust Company, National Association, is acting not in its individual capacity but solely in the capacity of Trustee solely for (i) the 2025 U.S. Notes Secured Parties and (ii) the 2025 E.U. Notes Secured Parties, as applicable, (b) JPMorgan Chase Bank, N.A., is acting not in its individual capacity but solely in the capacity of Administrative Agent for (i) the 2025 Credit Agreement Secured Parties and (ii) the 2023 Credit Agreement Secured Parties, (c) JPMorgan Chase Bank, N.A., is acting not in its individual capacity but solely in the capacity of Collateral Agent for the 2023 Credit Agreement Secured Parties and (d) GLAS Americas LLC is acting in the capacity of Collateral Agent for (i) the 2025 Credit Agreement Secured Parties, (ii) the 2025 U.S. Notes Secured Parties, and (iii) the 2025 E.U. Notes Secured Parties, as applicable, and in no event shall U.S. Bank Trust Company, National Association, JPMorgan Chase Bank, N.A. or GLAS Americas LLC incur any liability in connection with this Agreement or be personally liable for or on account of the statements, representations, warranties, covenants or obligations stated to be those of any Initial Additional Authorized Representative or any Additional First Lien Priority Secured Party hereunder, all such liability, if any, being expressly waived by the parties hereto and any person claiming by, through or under such party. Except as expressly set forth herein, none of the Superpriority Credit Agreement Agent or the Major Non-Controlling Authorized Representative shall have any duties or obligations in respect of any of the Collateral, all of such duties and obligations, if any, being subject to and governed by the applicable Secured Credit Documents.
SECTION 5.17. Integration. This Agreement together with the other Secured Credit Documents and the First Lien Priority Security Documents represents the agreement of each of the Grantors and the First Lien Priority Secured Parties with respect to the subject matter hereof and there are no promises, undertakings, representations or warranties by any Grantor, the Superpriority Credit Agreement Agent, or any other First Lien Priority Secured Party relative to the subject matter hereof not expressly set forth or referred to herein or in the other Secured Credit Documents or the First Lien Priority Security Documents.
SECTION 5.18. Successors. For the avoidance of doubt, any successor administrative agent, collateral agent or trustee appointed under any Series of First Lien Priority Obligations may
replace the applicable Authorized Representative hereunder with respect to such series of First Lien Priority Obligations by executing a counterpart signature page hereto and delivering such signature page to each party hereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| | |
GLAS USA LLC, as Administrative Agent for the Superpriority Credit Agreement Secured Parties |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
GLAS Americas LLC, as Collateral Agent for the Superpriority Credit Agreement Secured Parties |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
JPMorgan Chase Bank, N.A., as Administrative Agent for the 2025 Credit Agreement Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
GLAS Americas LLC, as Collateral Agent for the 2025 Credit Agreement Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
U.S. Bank Trust Company, National Association, as Trustee for the 2025 U.S. Notes Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
GLAS Americas LLC, as Collateral Agent for the 2025 U.S. Notes Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
U.S. Bank Trust Company, National Association, as Trustee for the 2025 E.U. Notes Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
GLAS Americas LLC, as Collateral Agent for the 2025 E.U. Notes Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
JPMorgan Chase Bank, N.A., as Administrative Agent for the 2023 Credit Agreement Secured Parties and as Initial Additional Authorized Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
| | |
Diebold Nixdorf, Incorporated |
By: |
| Name: |
| Title: |
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Diebold Global Finance Corporation |
By: |
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Diebold Holding Company, LLC |
By: |
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Diebold SST Holding Company, LLC |
By: |
| Name: |
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Diebold Self Service Systems |
By: |
| Name: |
| Title: |
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Griffin Technology Incorporated |
By: |
| Name: |
| Title: |
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[Signature Page to First Lien Pari Passu Intercreditor Agreement] |
ANNEX I
Grantors
Diebold Nixdorf, Incorporated Diebold Global Finance Corporation Diebold Holding Company, LLC Diebold SST Holding Company, LLC Diebold Self-Service Systems
Griffin Technology Incorporated Diebold Nixdorf Dutch Holding B.V.
ANNEX II
[FORM OF] JOINDER NO. [ ] dated as of [ ], 20[ ] to the FIRST LIEN PARI
PASSU INTERCREDITOR AGREEMENT dated as of December 29, 2022 (the “First Lien Pari Passu Intercreditor Agreement”), among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the other Grantors from time to time party hereto, GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement (in such capacity and together with its successors in such capacity, the “Superpriority Credit Agreement Administrative Agent”), GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement (in such capacity and together with its successors in such capacity, the “Superpriority Credit Agreement Collateral Agent”), JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement (in such capacity and together with its successors in such capacity, the “2025 Credit Agreement Administrative Agent”), GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement (in such capacity and together with its successors in such capacity, the “2025 Credit Agreement Collateral Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 U.S. Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2025
U.S. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 U.S. Notes Collateral Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 E.U. Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 E.U. Notes Collateral Agent”), JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement (in such capacity and together with its successors in such capacity, the “2023 Credit Agreement Administrative Agent”), and each additional Authorized Representative from time to time party hereto for the other Additional First Lien Priority Secured Parties of the Series with respect to which it is acting in such capacity.
A.Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the First Lien Pari Passu Intercreditor Agreement.
B.As a condition to the ability of the Company to incur Additional First Lien Priority Obligations and to secure such Additional First Lien Debt with the liens and security interests created by the Additional First Lien Priority Security Documents, the Additional First Lien Debt Representative in respect of such Additional First Lien Debt is required to become an Authorized Representative, and such Additional First Lien Debt and the Additional First Lien Debt Parties in respect thereof are required to become subject to and bound by, the First Lien Pari Passu Intercreditor Agreement. Section 5.15 of the First Lien Pari Passu Intercreditor Agreement provides that such Additional First Lien Debt Representative may become an Authorized Representative, and such Additional First Lien Debt and such Additional First Lien Debt Parties may become subject to and bound by the First Lien Pari Passu Intercreditor Agreement upon the execution and delivery by the First Lien Debt Class Representative of an instrument in the form of this Joinder Agreement and the satisfaction of the other conditions set forth in Section 5.15 of the First Lien Pari Passu Intercreditor Agreement. The undersigned Additional First Lien Debt Representative (the “New Representative”) is executing this Joinder Agreement in accordance with the requirements of the First Lien Pari Passu Intercreditor Agreement and the First Lien Priority Security Documents.
Accordingly, each Authorized Representative and the New Representative agree as follows:
SECTION 1. In accordance with Section 5.15 of the First Lien Pari Passu Intercreditor Agreement, the New Representative by its signature below becomes an Authorized Representative under, and the related Additional First Lien Debt and Additional First Lien Debt Parties become subject to and bound by, the First Lien Pari Passu Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as an Authorized Representative and the New Representative, on its behalf and on behalf of such Additional First Lien Debt Parties, hereby agrees to all the terms and provisions of the First Lien Pari Passu Intercreditor Agreement applicable to it as Authorized Representative and to the Additional First Lien Debt Parties that it represents as Additional First Lien Priority Secured Parties. Each reference to an “Authorized Representative” in the First Lien Pari Passu Intercreditor Agreement shall be deemed to include the New Representative. The First Lien Pari Passu Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Representative represents and warrants to each Authorized Representative and the other First Lien Priority Secured Parties, individually, that (i) it has full power and authority to enter into this Joinder, in its capacity as [trustee/administrative agent and] collateral agent, (ii) this Joinder has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms and (iii) the Additional First Lien Priority Documents relating to such Additional First Lien Debt provide that, upon the New Representative’s entry into this Agreement, the Additional First Lien Debt Parties in respect of such Additional First Lien Debt will be subject to and bound by the provisions of the First Lien Pari Passu Intercreditor Agreement as Additional First Lien Priority Secured Parties.
SECTION 3. This Joinder may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Joinder shall become effective when each Authorized Representative shall have received a counterpart of this Joinder that bears the signatures of the New Representative. Delivery of an executed signature page to this Joinder by facsimile transmission shall be effective as delivery of a manually signed counterpart of this Joinder.
SECTION 4. Except as expressly supplemented hereby, the First Lien Pari Passu Intercreditor Agreement shall remain in full force and effect.
SECTION 5. THIS JOINDER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 6. In case any one or more of the provisions contained in this Joinder should be held invalid, illegal or unenforceable in any respect, no party hereto shall be required to comply with such provision for so long as such provision is held to be invalid, illegal or unenforceable, but the validity, legality and enforceability of the remaining provisions contained herein and in the First Lien Pari Passu Intercreditor Agreement shall not in any way be affected or impaired. The parties hereto shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 5.01 of the First Lien Pari Passu Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at its address set forth below its signature hereto.
SECTION 8. The Company agrees to reimburse each Authorized Representative for its reasonable out-of-pocket expenses in connection with this Joinder, including the reasonable fees, other charges and disbursements of counsel.
IN WITNESS WHEREOF, the New Representative has duly executed this Joinder to the First Lien Pari Passu Intercreditor Agreement as of the day and year first above written.
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[NAME OF NEW REPRESENTATIVE], as [ ] and as collateral agent for the holders of [ ], |
By: |
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Address for notices: |
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attention of: Telecopy: |
Acknowledged by:
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GLAS USA LLC, as the Superpriority Credit Agreement Agent and Authorized Representative, |
By: |
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JPMORGAN CHASE BANK, N.A., as the Initial Additional Authorized Representative, |
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[OTHER AUTHORIZED REPRESENTATIVES] [COMPANY]
By: Name:
Title: [GRANTOR]
By: Name:
Title:
[THE OTHER GRANTORS,]
By: Name:
Title:
Schedule I to the Supplement to the
First Lien Pari Passu Intercreditor Agreement Grantors
EXHIBIT H [FORM OF] NON-RELEASED MULTI LIEN INTERCREDITOR AGREEMENT
NON-RELEASED MULTI LIEN INTERCREDITOR AGREEMENT
by and among Diebold Nixdorf, Incorporated, the other Grantors party hereto,
GLAS USA LLC,
as Administrative Agent for the Superpriority Secured Parties and as a First Priority Representative,
GLAS Americas LLC,
as Collateral Agent for the Superpriority Secured Parties and as a First Priority Representative,
U.S. Bank Trust Company, National Association,
as Trustee for the 2025 U.S. Notes Secured Parties and as a First Priority Representative,
GLAS Americas LLC,
as Collateral Agent for the 2025 U.S. Notes Secured Parties and as a First Priority Representative,
U.S. Bank Trust Company, National Association,
as Trustee for the 2025 E.U. Notes Secured Parties and as a First Priority Representative,
GLAS Americas LLC,
as Collateral Agent for the 2025 E.U. Notes Secured Parties and as a First Priority Representative,
JPMorgan Chase Bank, N.A.,
as Administrative Agent for the 2025 Credit Agreement Secured Parties and as a First Priority Representative,
GLAS Americas LLC,
as Collateral Agent for the 2025 Credit Agreement Secured Parties and as a First Priority Representative,
JPMorgan Chase Bank, N.A.,
as Administrative Agent for the 2023 Credit Agreement Secured Parties and as a First Priority Representative,
U.S. Bank Trust Company, National Association,
as Trustee for the 2026 Notes Secured Parties and as Second Priority Representative,
GLAS Americas LLC,
as Collateral Agent for the 2026 Notes Secured Parties and as Second Priority Representative, and
the other Representatives from time to time party hereto Dated as of December 29, 2022
This NON-RELEASED MULTI LIEN INTERCREDITOR AGREEMENT, dated as of December
29, 2022 (this “Agreement”), is entered into by and among:
(i)GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “Superpriority Credit Agreement Administrative Agent”),
(ii)GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “Superpriority Credit Agreement Collateral Agent”),
(iii)U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 U.S. Notes Trustee”),
(iv)GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 U.S. Notes Collateral Agent”),
(v)U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 E.U. Notes Trustee”),
(vi)GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 E.U. Notes Collateral Agent”),
(vii)JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 Credit Agreement Administrative Agent”),
(viii)GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2025 Credit Agreement Collateral Agent”),
(ix)JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2023 Credit Agreement Administrative Agent”),
(x)U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2026 Notes Trustee”),
(xi)GLAS Americas LLC, as collateral agent for the 2026 Notes Indenture (as defined below) (in such capacity and together with its successors in such capacity, and as more specifically defined below, the “2026 Notes Collateral Agent”),
(xii)and any Additional Second Priority Representative (as defined below) that from time to time becomes a party hereto pursuant to Section 8.09,
(xiii)and acknowledged by Diebold Nixdorf, Incorporated, an Ohio corporation (or any successor thereof, the “Company”) and the other Grantors (as defined below) party hereto.
In consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I DEFINITIONS
Section 1.01. Certain Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“2023 Credit Agreement” means that certain Credit Agreement, dated as of November 23, 2015, by and among the Company, JPMorgan Chase Bank, N.A. as administrative agent, the Subsidiary Borrowers (as defined therein) and the other parties from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“2023 Credit Agreement Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor administrative agent as provided in the 2023 Credit Agreement.
“2023 Credit Agreement Collateral” means Collateral (as defined in the 2023 Credit Agreement Security Agreement), excluding, for the avoidance of doubt, any Excluded Assets (as defined in the 2023 Credit Agreement), with respect to which a Lien is granted pursuant to the 2023 Credit Agreement Security Agreement as security for any 2023 Credit Agreement Obligations, which Lien is, at any time of determination, a valid and perfected Lien that has not been avoided, disallowed, set aside, invalidated, or subordinated pursuant to Chapter 5 of the Bankruptcy Code or any similar Bankruptcy Law.
“2023 Credit Agreement Debt Documents” means each credit agreement, loan agreement, note purchase agreement, indenture or other governing agreement with respect to the 2023 Credit Agreement, in each case as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“2023 Credit Agreement Obligations” means all Obligations (as defined in the 2023 Credit Agreement).
“2023 Credit Agreement Representative” shall mean the 2023 Credit Agreement Administrative Agent, and shall include any successor administrative agent and collateral agent as provided in the 2023 Credit Agreement.
“2023 Credit Agreement Secured Parties” means the Secured Parties (as defined in the 2023 Credit Agreement).
“2023 Credit Agreement Security Agreement” means that certain Security Agreement, dated as of August 12, 2016, by and among the Company, the Subsidiary Pledgors (as defined therein) party thereto and JPMorgan Chase Bank, N.A., as administrative agent, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“2025 Credit Agreement” means that certain credit agreement, dated as of the date hereof, by and among the Company, the 2025 Credit Agreement Representative and the other parties thereto, as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“2025 Credit Agreement Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor administrative agent as provided in the 2025 Credit Agreement.
“2025 Credit Agreement Collateral Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2025 Credit Agreement.
“2025 Credit Agreement Representative” shall mean (i) the 2025 Credit Agreement Administrative Agent and (ii) the 2025 Credit Agreement Collateral Agent, as applicable, and shall include any successor administrative agent and collateral agent as provided in the 2025 Credit Agreement.
“2025 Credit Agreement Secured Parties” means the Secured Parties (as defined in the 2025 Credit Agreement).
“2025 E.U. Notes Collateral Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2025 E.U. Notes Indenture.
“2025 E.U. Notes Indenture” means that certain indenture, dated as of July 20, 2020, by and among the Company, Diebold Nixdorf Dutch Holding B.V., as the Dutch Issuer, the Guarantors (as defined therein) party thereto, the 2025 E.U. Notes Trustee, the 2025 E.U. Notes Collateral Agent and the other parties from time to time party thereto, as amended, supplemented or otherwise modified or Refinanced from time to time.
“2025 E.U. Notes Representative” shall mean (i) the 2025 E.U. Notes Trustee and (ii) the 2025
E.U. Notes Collateral Agent, as applicable, and shall include any successor trustee and collateral agent as provided in the 2025 E.U. Notes Indenture.
“2025 E.U. Notes Secured Parties” means the holders of Obligations arising under or in connection with the 2025 E.U. Notes Indenture, in such capacity and the 2025 E.U. Notes Trustee.
“2025 E.U. Notes Trustee” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor trustee as provided in the 2025 E.U. Notes Indenture.
“2025 U.S. Notes Collateral Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Indenture” means that certain indenture, dated as of July 20, 2020, as supplemented as of the date hereof, by and among the Company, the Guarantors (as defined therein) party thereto, the 2025 U.S. Notes Trustee, and the 2025 U.S. Notes Collateral Agent, as amended, supplemented or otherwise modified or Refinanced from time to time.
“2025 U.S. Notes Representative” shall mean (i) the 2025 U.S. Notes Trustee and (ii) the 2025 U.S. Notes Collateral Agent, as applicable, and shall include any successor trustee and collateral agent as provided in the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Secured Parties” means the holders of Obligations arising under or in connection with the 2025 U.S. Notes Indenture, in such capacity, and the 2025 U.S. Notes Trustee.
“2025 U.S. Notes Trustee” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor trustee as provided in the 2025 U.S. Notes Indenture.
“2026 Notes Collateral Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor collateral agent as provided in the 2026 Notes Indenture.
“2026 Notes Indenture” means that certain indenture, dated as of the date hereof, by and among the Company, the Subsidiary Guarantors (as defined therein) party thereto, the 2026 Notes Trustee, the 2026 Notes Collateral Agent and the other parties from time to time party thereto, as amended, supplemented or otherwise modified or Refinanced from time to time.
“2026 Notes Representative” shall mean (i) the 2026 Notes Trustee and (ii) the 2026 Notes Collateral Agent, as applicable, and shall include any successor trustee and collateral agent as provided in the 2026 Notes Indenture.
“2026 Notes Secured Parties” means the holders of Obligations arising under or in connection with the 2026 Notes Indenture, in such capacity, and the 2026 Notes Trustee.
“2026 Notes Trustee” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor trustee as provided in the 2026 Notes Indenture.
“ABL Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among JPMorgan Chase Bank, N.A., as administrative agent and collateral agent under the ABL credit agreement referenced therein, GLAS Americas LLC, as European collateral agent under the ABL credit agreement referenced therein, GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement, GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement, JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement, GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture, U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture, JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture, and GLAS Americas LLC, as collateral agent under the 2026 Notes Indenture, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Additional Second Priority Debt Documents” means, with respect to any series, issue or class of Additional Second Priority Obligations, the applicable Additional Second Priority Facility and any notes, security documents and other operative agreements evidencing or governing such Obligations, including any agreement entered into for the purpose of securing such Additional Second Priority Obligations, including, if applicable, the Second Priority Collateral Documents.
“Additional Second Priority Facility” means each credit agreement, loan agreement, note purchase agreement, indenture or other governing agreement with respect to any Additional Second Priority Obligations, in each case as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“Additional Second Priority Obligations” means all Obligations under and in respect of the Additional Second Priority Debt Documents which are permitted by the then extant First Priority Debt Documents and Second Priority Debt Documents to be secured by the Shared Collateral equally and ratably with, or on the same basis as, the Obligations under and in respect of the 2026 Notes Indenture for purposes of the Second Priority Debt Documents or the Second Priority Collateral Documents.
“Additional Second Priority Representative” means the trustee, administrative agent, collateral agent, security agent or similar agent under an Additional Second Priority Facility (upon and after the initial execution and delivery thereof by the initial parties thereto) that is named as the Additional Second Priority Representative in an Additional Second Priority Representative Joinder Agreement executed and delivered in accordance with Section 8.09, and shall include any successor trustee, administrative agent, collateral agent, security agent or similar agent as provided in such Additional Second Priority Facility.
“Additional Second Priority Representative Joinder Agreement” means a supplement to this Agreement in the form of Exhibit B hereof required to be delivered by an Additional Second Priority Representative to the Superpriority Secured Parties Representative, 2025 U.S. Notes Representative, 2025 E.U. Notes Representative, 2025 Credit Agreement Representative, 2023 Credit Agreement Representative and any other Representatives party hereto pursuant to Section 8.09 in order to include Additional Second Priority Obligations hereunder and to become the Representative hereunder for the Additional Second Priority Secured Parties.
“Additional Second Priority Secured Parties” means the holders of any Additional Second Priority Obligations, in such capacity, and any Additional Second Priority Representative.
“Agreement” has the meaning assigned to such term in the preamble to this Agreement.
“Bankruptcy Code” means Title 11 of the United States Code, as amended.
“Bankruptcy Laws” means the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, administration, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar federal, state or foreign debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City, or where the registered office of each First Priority Representative or each Second Priority Representative is located, are authorized or required by law to close.
“Collateral Documents” means the First Priority Collateral Documents and the Second Priority Collateral Documents.
“Debt Documents” means the First Priority Debt Documents and the Second Priority Debt Documents.
“Designated First Priority Representative” means the Controlling Agent as defined in and determined in accordance with the First Lien Pari Passu Intercreditor Agreement.
“DIP Financing” has the meaning assigned to such term in Section 6.01.
“Discharge” means (i) payment in full in cash of the principal of, interest (including interest accruing on or after the commencement of any Insolvency or Liquidation Proceeding at the rate set forth in the applicable Debt Documents, whether or not allowed or allowable in such proceeding) and premium (if
any) on all applicable Obligations outstanding under the applicable Debt Documents, (ii) payment in full in cash of all other Obligations that are due and payable or otherwise accrued and owing under or in connection with the applicable Debt Documents at or prior to the time such principal and interest are paid or commitments referred to in the following clause (iii) are terminated (other than any contingent obligations for which no demand or claim has been made), and (iii) termination of all other commitments of the applicable Secured Parties to extend credit under the applicable Debt Documents, in each case without giving effect to any limitations on the enforceability thereof, or the enforceability or allowance of the applicable Obligations under applicable Bankruptcy Laws or otherwise (including, without limitation, with respect to interest, fees, or expenses which accrue after the commencement of any Insolvency or Liquidation Proceeding or which would accrue but for the operation of Bankruptcy Laws); with respect to the First Priority Obligations, and the Second Priority Obligations, to the extent otherwise expressly provided in Section 5.06 and Section 6.04.
“Disposition” means any conveyance, sale, lease, assignment, transfer, license or other disposition.
“Enforcement Action” has the meaning assigned to such term in Section 3.01.
“Event of Default” shall mean “Default” or “Event of Default” under any applicable Facility.
“Facility” means each of the First Priority Facilities and the Second Priority Facilities.
“First Lien Pari Passu Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the date hereof, by and among the Company, GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement, GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement, GLAS USA LLC, as administrative agent under the First Priority Credit Agreement, GLAS Americas LLC, as collateral agent under the First Priority Credit Agreement, U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture, U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture, GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture, JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement, U.S. Bank Trust Company, National Association as trustee under the 2026 Notes Indenture, and GLAS Americas LLC, as collateral agent under the 2026 Notes Indenture, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“First Priority Collateral” means the 2023 Credit Agreement Collateral with respect to which a Lien is granted to the First Priority Representative pursuant to the First Priority Collateral Documents as security for any First Priority Obligations, which Lien is, at any time of determination, a valid and perfected Lien that has not been avoided, disallowed, set aside, invalidated, or subordinated pursuant to Chapter 5 of the Bankruptcy Code or any similar Bankruptcy Law.
“First Priority Collateral Documents” means the “Security Documents” as defined in the Superpriority Credit Agreement, 2025 U.S. Notes Indenture, 2025 E.U. Notes Indenture, 2025 Credit Agreement, 2023 Credit Agreement and any other documents or instruments granting (or purporting to grant) a Lien on real or personal property to secure any First Priority Obligation or granting rights or remedies with respect to such Liens.
“First Priority Debt Documents” means the First Priority Facilities, the First Priority Collateral Documents, and all other notes, agreements, documents and instruments securing, providing for, evidencing or governing any First Priority Obligations.
“First Priority Facilities” means the Superpriority Credit Agreement, 2025 U.S. Notes Indenture, 2025 E.U. Notes Indenture, 2025 Credit Agreement and 2023 Credit Agreement.
“First Priority Obligations” means all Obligations under and in respect of the Superpriority Credit Agreement, the 2025 U.S. Notes Indenture, the 2025 E.U. Notes Indenture, the 2025 Credit Agreement and 2023 Credit Agreement.
“First Priority Representative” shall mean (i) with respect to the Obligations under the Superpriority Credit Facility or the holders of Obligations under the Superpriority Credit Facility, the Superpriority Secured Parties Administrative Agent and the Superpriority Secured Parties Collateral Agent, as applicable,
(ii) with respect to the Obligations under the 2025 U.S. Notes Indenture or the holders of Obligations under the 2025 U.S. Notes Indenture, the 2025 U.S. Administrative Agent and the 2025 U.S. Collateral Agent, as applicable, (iii) with respect to the Obligations under the 2025 E.U. Notes Indenture or the holders of Obligations under the 2025 E.U. Notes Indenture, the 2025 E.U. Notes Trustee and the 2025 E.U. Notes Collateral Agent, as applicable, (iv) with respect to the Obligations under the 2025 Credit Agreement or the holders of Obligations under the 2025 Credit Agreement, both the 2025 Credit Agreement Administrative Agent and the 2025 Credit Agreement Collateral Agent, as applicable, and (v) with respect to the Obligations under the 2023 Credit Agreement or the holders of Obligations under the 2023 Credit Agreement, the 2023 Credit Agreement Administrative Agent. References in this Agreement or in any joinder to this Agreement to “the First Priority Representative” or phrases of similar import shall include each and any First Priority Representative, including any successor administrative agent and collateral agent as provided in the First Priority Credit Facility. References in this Agreement or in any joinder to this Agreement to the “the First Priority Representative, on behalf of itself and each other First Priority Secured Party” or phrases of similar import shall include each and any First Priority Representative on behalf of the First Priority Secured Parties for which it serves as a Representative.
“First Priority Secured Parties” means the holders of any First Priority Obligations, in such capacity, and the Superpriority Secured Parties Representative, 2025 U.S. Notes Representative, 2025 E.U. Notes Representative, 2025 Credit Agreement Representative and 2023 Credit Agreement Representative.
“Grantors” means the Company and each Subsidiary that has granted a security interest pursuant to any Collateral Document in respect of the 2023 Credit Agreement Collateral (including any Subsidiary that becomes a party to this Agreement as contemplated by Section 8.07) to secure any Secured Obligations.
“Insolvency or Liquidation Proceeding” means an assignment for the benefit of creditors relating to the Company or any Grantor, whether or not voluntary; or any case commenced by or against the Company or any Grantor under the Bankruptcy Code or any similar Bankruptcy Law, whether or not voluntary; or any proceeding by or against the Company or any Grantor seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, dissolution, marshaling of assets or liabilities, winding up, reorganization, arrangement, adjustment, administration, protection, relief, or composition of it or its debts, in each case, whether or not voluntary and whether or not involving bankruptcy or insolvency, or seeking the entry of an order for relief or the appointment of a receiver, interim receiver, monitor, trustee, administrator or other similar official for it or for any substantial part of its property and assets, whether or not voluntary; or any event or action analogous to or having a substantially similar effect to any of the events or actions set forth in this definition (other than a solvent reorganization) under the law of any jurisdiction applicable to the Company or any Grantor.
“Junior Lien Pari Passu Intercreditor Agreement” means the Junior Lien Pari Passu Intercreditor Agreement, dated as of the date hereof, among the Company, Diebold Nixdorf Holding Germany GmbH, GLAS USA LLC, as administrative agent for the 2025 Credit Agreement Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 Credit Agreement Secured Parties, U.S. Bank Trust Company,
National Association, as trustee for the 2025 U.S. Notes Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 U.S. Notes Secured Parties, U.S. Bank Trust Company, National Association, as trustee for the 2025 E.U. Notes Secured Parties, and GLAS Americas LLC, as collateral agent for the 2025 E.U. Notes Secured Parties, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.
“Lien” means, any lien, mortgage, pledge, hypothecation, charge, assignment by way of security, security interest, preference, priority, encumbrance, conditional sale or other title retention agreement or other similar lien, in each case of any kind and whether or not filed, recorded or otherwise perfected under applicable law; provided that in no event shall an operating lease be deemed to constitute a Lien.
“Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the date hereof, among GLAS USA LLC, as administrative agent for the Superpriority Secured Parties, GLAS Americas LLC, as collateral agent for the Superpriority Secured Parties, U.S. Bank Trust Company, National Association, as trustee for the 2025 U.S. Notes Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 U.S. Notes Secured Parties, U.S. Bank Trust Company, National Association, as trustee for the 2025 E.U. Notes Secured Parties, GLAS Americas LLC, as collateral agent for the 2025
E.U. Notes Secured Parties, JPMorgan Chase Bank, N.A., as administrative agent for the 2025 Credit Agreement Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 Credit Agreement Secured Parties, U.S. Bank Trust Company, National Association, as the trustee for the 2026 Notes Secured Parties, GLAS Americas LLC, as collateral agent for the 2026 Notes Secured Parties, and the other parties thereto, as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“Obligations” means any principal, interest (including any interest, fees, expenses and other amounts accruing subsequent to the filing of a petition in bankruptcy, reorganization or similar proceeding at the rate provided for in the documentation with respect thereto, whether or not such interest, fees, expenses and other amounts are an allowed or allowable claim under applicable state, federal or foreign law), penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any indebtedness.
“Officer’s Certificate” has the meaning assigned to such term in Section 8.08.
“Person” means any natural person, corporation, division of a corporation, partnership, limited liability company, trust, joint venture, association, company, estate, unincorporated organization, governmental authority or any agency or political subdivision thereof.
“Pledged or Controlled Collateral” has the meaning assigned to such term in Section 5.05(a).
“Proceeds” means (x) the proceeds of any sale, collection, disposition or other liquidation of Shared Collateral and any payment or distribution made in respect of, or attributable to, the Shared Collateral or the value thereof, including in an Insolvency or Liquidation Proceeding (including, for the avoidance of doubt, any distribution of equity or debt securities or other instruments or any additional or replacement collateral provided during any Insolvency or Liquidation Proceeding) and (y) any amounts received by the First Priority Representative or any First Priority Secured Party from a Second Priority Secured Party in respect of Shared Collateral.
“Purchase Notice” has the meaning assigned to such term in Section 5.07.
“Purchase Price” has the meaning assigned to such term in Section 5.07.
“Recovery” has the meaning assigned to such term in Section 6.04.
“Refinance” means, in respect of any indebtedness or other obligation, to refinance, extend, renew, defease, amend and restate, restructure, replace, refund or repay, or to issue other indebtedness or other obligation in exchange or replacement for, such indebtedness or other obligation in whole or in part, including by adding or replacing lenders, creditors, agents, borrower and/or guarantors, and including in each case, but not limited to, after the original instrument giving rise to such indebtedness or other obligation has been terminated and including, in each case, through any credit agreement, indenture or other agreement. “Refinancing” shall have a correlative meaning.
“Representative” means any First Priority Representative and any Second Priority Representative.
“Second Priority Collateral” means the 2023 Credit Agreement Collateral with respect to which a Lien is granted to the Second Priority Representative pursuant to the Second Priority Collateral Documents as security for any Second Priority Obligations, which Lien is, at any time of determination, a valid and perfected Lien that has not been avoided, disallowed, set aside, invalidated, or subordinated pursuant to Chapter 5 of the Bankruptcy Code or any similar Bankruptcy Law.
“Second Priority Collateral Documents” means the “Security Documents” as defined in the Second Priority Debt Documents, and any other documents or instruments granting (or purporting to grant) a Lien on real or personal property to secure any Second Priority Obligation or granting rights or remedies with respect to such Liens.
“Second Priority Debt Documents” means the Second Priority Facilities, the Second Priority Collateral Documents, and all other notes, agreements, documents and instruments securing, providing for, evidencing or governing any Second Priority Obligations.
“Second Priority Facilities” means the 2026 Notes Indenture and any Additional Second Priority Facility.
“Second Priority Liens” means the Liens on the Second Priority Collateral in favor of the Second Priority Secured Parties under the Second Priority Collateral Documents (upon and after the initial execution and delivery thereof by the initial parties thereto).
“Second Priority Obligations” means all Obligations under and in respect of the Second Priority Debt Documents.
“Second Priority Representative” means the 2026 Notes Trustee or 2026 Notes Collateral Agent, as applicable, and shall include any successor administrative agent and collateral agent as provided in the 2026 Notes Indenture.
“Second Priority Secured Parties” means the 2026 Notes Secured Parties and any Additional Second Priority Secured Parties.
“Secured Obligations” means the First Priority Obligations and the Second Priority Obligations.
“Secured Parties” means the First Priority Secured Parties and the Second Priority Secured Parties.
“Shared Collateral” means assets that are both First Priority Collateral and Second Priority Collateral.
“Subsidiary” means, in respect of any specified Person, any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of capital stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person. Unless specified otherwise, any reference to a “Subsidiary” shall be deemed to be a reference to a Subsidiary of the Company.
“Superpriority Credit Agreement” means that certain credit agreement, dated as of the date hereof, by and among the Company, Diebold Nixdorf Holding Germany GmbH, as Borrower, the Lenders party thereto, the Superpriority Credit Agreement Administrative Agent, the Superpriority Credit Agreement Collateral Agent, and the other parties from time to time party thereto, as amended, restated, amended and restated, supplemented or otherwise modified or Refinanced from time to time.
“Superpriority Credit Agreement Administrative Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor administrative agent as provided in the Superpriority Credit Agreement.
“Superpriority Credit Agreement Collateral Agent” has the meaning assigned to such term in the preamble of this Agreement and shall include any successor collateral agent as provided in the Superpriority Credit Agreement.
“Superpriority Secured Parties” means the holders of Obligations under the Superpriority Credit Agreement.
“Superpriority Secured Parties Representative” shall mean (i) the Superpriority Credit Agreement Administrative Agent and (ii) the Superpriority Credit Agreement Collateral Agent, as applicable,, and shall include any successor collateral agent as provided in the Superpriority Credit Agreement.
“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in the State of New York; provided that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of, or remedies with respect to, any Collateral is governed by the Uniform Commercial Code as enacted and in effect in a jurisdiction other than the State of New York, the term “Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as enacted and in effect in such other jurisdiction solely for purposes of the provisions hereof relating to such perfection, priority or remedies.
Section 1.02. Terms Generally. The definitions of terms in this Agreement shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights. Unless the context shall otherwise require, the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, and all references herein to Sections and Exhibits shall be deemed references to Sections of, and Exhibits to, this Agreement. All references herein to any Person shall be construed to include such Person’s successors and permitted assigns. Unless otherwise indicated, any reference to any agreement or instrument will be deemed to include a reference to that agreement or instrument as assigned, amended, supplemented, amended and restated, or otherwise modified from time to time or replaced in accordance with the terms of this Agreement.
ARTICLE II
PRIORITIES AND AGREEMENTS WITH RESPECT TO SHARED COLLATERAL AND OTHER PROPERTY
Section 2.01. Subordination. Notwithstanding (w) the date, time, manner or order of grant, filing or recordation of any document or instrument, actual or alleged avoidance, enforceability, attachment or perfection of any Liens granted to the Second Priority Representative or any other Second Priority Secured Party on the Shared Collateral, or of any Liens granted or purported to be granted to the First Priority Representative or any other First Priority Secured Party on the Shared Collateral (or any actual or alleged defect in any of the foregoing), (x) any provision of the UCC, any applicable law (including any Bankruptcy Law), any Second Priority Debt Document or any First Priority Debt Document, (y) whether the First Priority Representative or the Second Priority Representative, in each case, either directly or through agents, holds possession of, or has control over, all or any part of the Shared Collateral, or (z) any other circumstance whatsoever, the Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, hereby agrees that:
(i)any Lien on the Shared Collateral securing or purporting to secure any First Priority Obligations now or hereafter held by or on behalf of the First Priority Representative or any other First Priority Secured Party or other agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall have priority over and be senior in all respects and prior to any Lien on the Shared Collateral securing or purporting to secure any Second Priority Obligations;
(ii)any Lien on the Shared Collateral securing or purporting to secure any Second Priority Obligations now or hereafter held by or on behalf of the Second Priority Representative, any other Second Priority Secured Parties or any other agent or trustee therefor, regardless of how acquired, whether by grant, possession, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to all Liens on the Shared Collateral securing or purporting to secure any First Priority Obligations; and
(iii)all Liens on the Shared Collateral securing or purporting to secure any First Priority Obligations shall be and remain senior in all respects and prior to all Liens on the Shared Collateral securing or purporting to secure any Second Priority Obligations for all purposes, whether or not such Liens securing or purporting to secure any First Priority Obligations are subordinated (including by way of equitable subordination) to any Lien securing any other obligation of the Company, any Grantor or any other Person or otherwise subordinated (including by way of equitable subordination), voided, avoided, invalidated or lapsed.
Section 2.02. Nature of First Priority Obligation Claims. The Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, acknowledges that (a) the terms of the First Priority Debt Documents and the First Priority Obligations may be amended, restated, amended and restated, supplemented or otherwise modified, and the First Priority Obligations, or a portion thereof, may be Refinanced from time to time and (b) the aggregate amount of the First Priority Obligations may be increased, in each case, without notice to or consent by the Second Priority Representative or the other Second Priority Secured Parties, and without affecting the provisions hereof, except as otherwise expressly set forth herein or in the Second Priority Debt Documents, as the case may be. The Lien priorities provided for in Section 2.01 shall not be altered or otherwise affected by any amendment, restatement, amendment and restatement, supplement or other modification, or any Refinancing, of the First Priority Obligations, the Second Priority Obligations, or any portion thereof. As between the Company and the other Grantors and the Second Priority Secured Parties, the foregoing provisions will not limit or otherwise affect the
obligations of the Company and the other Grantors contained in any Second Priority Debt Document with respect to the incurrence of additional First Priority Obligations.
Section 2.03. Prohibition on Contesting Liens or Claims. (a) The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that it shall not (and hereby waives any right to) challenge or contest or support any other Person in challenging or contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority, allowability or enforceability of any Lien securing, or claim asserted with respect to, any First Priority Obligations held (or purported to be held) by or on behalf of the First Priority Representative or any other First Priority Secured Party or other agent or trustee therefor, and (b) the First Priority Representative, for itself and on behalf of each other First Priority Secured Party, agrees that it shall not (and hereby waives any right to) challenge or contest or support any other Person in challenging or contesting, in any proceeding (including any Insolvency or Liquidation Proceeding), the validity, extent, perfection, priority, allowability, or enforceability of any Lien securing, or claim asserted with respect to any Second Priority Obligations held (or purported to be held) by or on behalf of any of the Second Priority Representative or any other Second Priority Secured Party. Notwithstanding the foregoing, no provision in this Agreement shall be construed to prevent or impair the rights of the First Priority Representative or the Second Priority Representative to enforce this Agreement (including the priority of the Liens securing the First Priority Obligations or Second Priority Obligations, in each case as provided in Section 2.01) or any of the First Priority Debt Documents or Second Priority Debt Documents, as applicable.
Section 2.04. Perfection of Liens. Except for the limited agreements of the First Priority Representative pursuant to Section 5.05, none of the First Priority Representative or the other First Priority Secured Parties shall be responsible for perfecting and maintaining the perfection of Liens with respect to the Shared Collateral for the benefit of the Second Priority Representative or the other Second Priority Secured Parties. The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, further acknowledges and agrees that neither the First Priority Representative nor any other First Priority Secured Party shall have any duties or other obligations to the Second Priority Secured Parties with respect to any Shared Collateral, other than the limited agreements of the First Priority Representative in Section 5.05, in each case without representation or warranty on the part of the First Priority Representative or any other First Priority Secured Party. Without limiting the foregoing, each Second Priority Secured Party agrees that neither the First Priority Representative nor any other First Priority Secured Party shall have any duty or obligation to marshal or realize upon any type of Shared Collateral (or any other collateral securing the First Priority Obligations), or to sell, dispose of or otherwise liquidate all or any portion of the Shared Collateral (or any other collateral securing the First Priority Obligations), in any manner that would maximize the return to the Second Priority Secured Parties, notwithstanding that the order and timing of any such realization, sale, disposition or liquidation may affect the amount of proceeds actually received by the Second Priority Secured Parties from such realization, sale, disposition or liquidation.
ARTICLE III ENFORCEMENT
Section 3.01. Exercise of Remedies.
(a)So long as the Discharge of First Priority Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against the Company or any other Grantor,
(i) none of the Second Priority Representative or any other Second Priority Secured Party, will (A) initiate any Insolvency or Liquidation Proceeding against any Grantor or any Subsidiary of any Grantor, (B) assert any marshaling, appraisal, valuation or other similar right that may otherwise be available to junior secured creditors, (C) exercise or seek to exercise any rights or remedies (including setoff or recoupment) with
respect to any Shared Collateral, any other property of any Grantor or any subsidiary of any Grantor, or otherwise in any manner in respect of any Second Priority Obligations, or instituting any action or proceeding with respect to such rights and remedies (including any action of foreclosure), or (D) contest, protest or object to any foreclosure proceeding or other action brought with respect to the Shared Collateral or any other First Priority Collateral or any other property of any Grantor or Subsidiary of any Grantor by the First Priority Representative or any other First Priority Secured Party in respect of the First Priority Obligations, the exercise of any right by the First Priority Representative or any other First Priority Secured Party (or any agent or sub-agent on behalf thereof) in respect of the First Priority Obligations under any lockbox agreement, control agreement, landlord waiver or bailee’s letter or similar agreement or arrangement to which the First Priority Representative or any other First Priority Secured Party either is a party or may have rights as a third party beneficiary, or any other exercise by the First Priority Representative or any other First Priority Secured Party of any rights and remedies relating to the Shared Collateral, of any Grantor or Subsidiary of any Grantor, or otherwise in respect of the First Priority Collateral or the First Priority Obligations (each an “Enforcement Action”), or object to the forbearance by the First Priority Secured Parties from bringing or pursuing any foreclosure proceeding or action or any other exercise of any rights or remedies relating to the Shared Collateral in respect of First Priority Obligations and (ii) except as otherwise provided herein, the Designated First Priority Representative on behalf of the other First Priority Secured Parties shall have the exclusive right to enforce rights, exercise remedies (including setoff, recoupment and the right to credit bid their debt) and make determinations regarding the release, disposition or restrictions with respect to the Shared Collateral or any other First Priority Collateral without any consultation with or the consent of the Second Priority Representative or any other Second Priority Secured Party; provided, however, that (A) in any Insolvency or Liquidation Proceeding commenced by or against the Company or any other Grantor, the Second Priority Representative may file a claim, proof of claim or statement of interest with respect to the Second Priority Obligations in a manner consistent with the terms and conditions of this Agreement, (B) the Second Priority Representative may take any action (not adverse to the prior Liens on the Shared Collateral securing the First Priority Obligations or the rights of the First Priority Representative or the other First Priority Secured Parties to exercise remedies in respect thereof) in order to create, prove, perfect, preserve or protect (but not enforce) its rights in, and perfection and priority of its Lien on, the Shared Collateral, (C) to the extent not inconsistent with or prohibited by this Agreement (including this Section 3.01(a)), the Second Priority Representative and the other Second Priority Secured Parties may exercise their rights and remedies as unsecured creditors, to the extent provided and subject to the restrictions contained in Section 5.04, (D) the Second Priority Representative may exercise the rights and remedies provided for in Section 6.03, and may vote on a proposed plan of reorganization or similar dispositive restructuring plan in any Insolvency or Liquidation Proceeding in accordance with the terms of this Agreement (including Section 6.12), and (E) the Second Priority Representative and the other Second Priority Secured Parties may file any necessary or appropriate responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims or Liens of the Second Priority Secured Parties, in accordance with the terms of this Agreement, in each case in the foregoing clauses (A) through (E), to the extent such action is not inconsistent with the terms of this Agreement. In exercising rights and remedies with respect to the First Priority Collateral, the Designated First Priority Representative may enforce the provisions of the First Priority Debt Documents and exercise remedies thereunder, all in such order and in such manner as it may determine in the exercise of its sole discretion. Such exercise and enforcement shall include the rights of the Designated First Priority Representative to sell or otherwise dispose of Shared Collateral upon foreclosure, to incur expenses in connection with such sale or disposition and to exercise all the rights and remedies of a secured lender under the Uniform Commercial Code of any applicable jurisdiction and of a secured creditor under Bankruptcy Laws of any applicable jurisdiction.
(b)So long as the Discharge of First Priority Obligations has not occurred, the Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, agrees that it will not take
or receive any Shared Collateral or Proceeds in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to any Second Priority Obligations. Without limiting the generality of the foregoing, unless and until the Discharge of First Priority Obligations has occurred, the sole right of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Shared Collateral is to hold a Lien on the Shared Collateral in respect of Second Priority Obligations pursuant to the Second Priority Debt Documents for the period and to the extent granted therein and to receive a share of the Proceeds thereof, if any, after the Discharge of First Priority Obligations has occurred.
(c)(i) The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that neither it nor any other Second Priority Secured Party will take any action that would hinder, delay or interfere with any exercise of remedies in respect of the Shared Collateral undertaken by the Designated First Priority Representative or any other First Priority Secured Party under the First Priority Debt Documents, including any Disposition of the Shared Collateral, whether by foreclosure or otherwise, and (ii) the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby waives any and all rights it or any other Second Priority Secured Party may have as a junior lien creditor or otherwise to object to the manner in which the Designated First Priority Representative or any other First Priority Secured Parties seek to enforce the Liens granted on any of the First Priority Collateral, regardless of whether any action or failure to act by or on behalf of the Designated First Priority Representative or the other First Priority Secured Party is adverse to the interests of the Second Priority Secured Parties.
(d)The Second Priority Representative hereby acknowledges and agrees that no covenant, agreement or restriction contained in any Second Priority Debt Document, shall be deemed to restrict in any way the rights and remedies of the Designated First Priority Representative or the other First Priority Secured Parties with respect to the First Priority Collateral as set forth in this Agreement or the other First Priority Debt Documents.
(e)Until the Discharge of First Priority Obligations, the Designated First Priority Representative (or any Person authorized by it) shall have the exclusive right to exercise any right or remedy with respect to the Shared Collateral against any Grantor and shall have the exclusive right to determine and direct the time, method and place for exercising such right or remedy or conducting any proceeding with respect thereto; provided, however, that nothing in this Section shall impair the right of the Second Priority Representative or other agent or trustee acting on behalf of the Second Priority Secured Parties to take such actions with respect to the Shared Collateral after the Discharge of First Priority Obligations.
Section 3.02. Cooperation. The Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, agrees that, unless and until the Discharge of First Priority Obligations has occurred, it will not commence, or join with any Person (other than the Designated First Priority Representative and the other First Priority Secured Parties upon the request of the Designated First Priority Representative) in commencing, any enforcement, collection, execution, levy or foreclosure action or proceeding with respect to any Shared Collateral.
Section 3.03. Actions Upon Breach. Should the Second Priority Representative or any other Second Priority Secured Party contrary to this Agreement, in any way take or attempt to take any action prohibited by this Agreement (including any attempt to realize upon or enforce any remedy with respect to this Agreement) or fail to take any action required by this Agreement, the Designated First Priority Representative or any other First Priority Secured Party (in its or their own name or, to the extent authorized by any First Priority Debt Document, in the name of the Company or any other Grantor) or the Company may obtain relief against the Second Priority Representative or such other Second Priority Secured Party, as applicable by injunction, specific performance or other appropriate equitable relief. The Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, hereby (a) agrees that the
First Priority Secured Parties’ damages from the actions of the Second Priority Representative or any other Second Priority Secured Party, as applicable, may at that time be difficult to ascertain and may be irreparable and waives any defense that the Company, any other Grantor or the First Priority Secured Parties cannot demonstrate damages and (b) irrevocably waives any defense based on the adequacy of a remedy at law and any other defense that might be asserted to bar the remedy of specific performance in any action that may be brought by the Designated First Priority Representative or any other First Priority Secured Party.
ARTICLE IV PAYMENTS
Section 4.01. Application of Proceeds.
(a)So long as the Discharge of First Priority Obligations has not occurred, regardless of whether an Insolvency or Liquidation Proceeding has been commenced, the Shared Collateral or any Proceeds received in connection with the sale or other disposition of, collection on, or recovery on such Shared Collateral or Proceeds of Shared Collateral (x) upon the exercise of remedies or (y) at any time after any Insolvency or Liquidation Proceeding has commenced, shall be applied by the Designated First Priority Representative to the First Priority Obligations in such order as specified in the relevant First Priority Debt Documents until the Discharge of First Priority Obligations has occurred (subject to the terms of the First Lien Pari Passu Intercreditor Agreement and, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, to the terms of the ABL Intercreditor Agreement). Upon the Discharge of First Priority Obligations, the Designated First Priority Representative shall deliver promptly to the Second Priority Representative any Shared Collateral or Proceeds held by it in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct, to be applied by the Second Priority Representative to the Second Priority Obligations in such order as specified in the relevant Second Priority Debt Documents (subject, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, to the terms of the ABL Intercreditor Agreement).
(b)After the Discharge of First Priority Obligations and until the Discharge of Second Priority Obligations has occurred, regardless of whether an Insolvency or Liquidation Proceeding has been commenced (subject, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, to the terms of the ABL Intercreditor Agreement), any Shared Collateral or any Proceeds received in connection with the sale or other disposition of, collection on, or recovery on such Shared Collateral or Proceeds of Shared Collateral (x) upon the exercise of remedies or
(y) at any time after any Insolvency or Liquidation Proceeding has commenced, shall be applied by the Second Priority Representative to the Second Priority Obligations in such order as specified in the relevant Second Priority Debt Documents until the Discharge of Second Priority Obligations has occurred (subject, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, to the terms of the ABL Intercreditor Agreement).
Section 4.02. Payments Over. So long as the Discharge of First Priority Obligations has not occurred, regardless of whether an Insolvency or Liquidation Proceeding has been commenced (subject, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, to the terms of the ABL Intercreditor Agreement), any Shared Collateral or any Proceeds
received by the Second Priority Representative or any other Second Priority Secured Party, in connection with the exercise of any right or remedy (including setoff or recoupment) with respect to the Shared Collateral or otherwise relating to or on account of the Shared Collateral, in any Insolvency or Liquidation Proceeding (except as otherwise expressly set forth in Article VI) or otherwise in contravention of this Agreement, shall be segregated and held in trust for the benefit of and forthwith paid over to the Designated First Priority Representative for the benefit of the First Priority Secured Parties in the same form as received, with any necessary endorsements, or as a court of competent jurisdiction may otherwise direct. The Designated First Priority Representative is hereby authorized by the Second Priority Representative to make any such endorsements as agent for the Second Priority Representative or any other Second Priority Secured Party, as applicable. This authorization is coupled with an interest and is irrevocable.
Section 4.03. Method of Application of Payments. All payments received by the Designated First Priority Representative or the other First Priority Secured Parties may be applied, reversed and reapplied, in whole or in part, to the First Priority Obligations to the extent provided for in the First Priority Debt Documents (subject to the terms of the First Lien Pari Passu Intercreditor Agreement and, as between the holders of the ABL Obligations (as defined in the ABL Intercreditor Agreement) on the one side, and the holders of the Term Debt Obligations (as defined in the ABL Intercreditor Agreement) on the other side, to the terms of the ABL Intercreditor Agreement). In exercising remedies, whether as a secured creditor or otherwise, the Designated First Priority Representative shall have no obligation or liability to the Second Priority Representative or any other Second Priority Secured Party regarding the adequacy of any Proceeds for any action or omission, save and except solely for an action or omission that breaches the express obligations undertaken by each party under the terms of this Agreement.
ARTICLE V OTHER AGREEMENTS
Section 5.01. Releases.
(a)The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that, in the event of a Disposition of any specified item of Shared Collateral
(x) following an Event of Default, (y) in connection with or in lieu of the exercise of remedies in respect of Shared Collateral by the Designated First Priority Representative or (z) if not following an Event of Default or in connection with or in lieu of the exercise of remedies in respect of Shared Collateral by the Designated First Priority Representative, so long as such Disposition or release is permitted by the terms of the Second Priority Debt Documents, the Liens upon such Shared Collateral (but not on the proceeds thereof) granted to the Second Priority Representative and the other Second Priority Secured Parties to secure Second Priority Obligations shall terminate and be released, automatically and without any further action, concurrently with the termination and release of all Liens granted upon such Shared Collateral to secure First Priority Obligations. Upon delivery to the Second Priority Representative of an Officer’s Certificate stating that any such termination and release of Liens securing the First Priority Obligations has become effective (or shall become effective concurrently with such termination and release of the Liens granted to the Second Priority Representative and the other Second Priority Secured Parties) and any necessary or proper instruments of termination or release prepared by the Company or any other Grantor, the Second Priority Representative will promptly execute, deliver or acknowledge, at the Company’s or the other Grantor’s sole cost and expense and without any representation or warranty, such instruments to evidence such termination and release of the Liens. Nothing in this Section 5.01(a) will be deemed to affect any agreement of the Second Priority Representative, for itself and on behalf of the other Second Priority Secured Parties, to release the Liens on the Second Priority Collateral in other circumstances as set forth in the relevant Second Priority Debt Documents.
(b)The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby irrevocably constitutes and appoints the Designated First Priority Representative and any officer or agent of the Designated First Priority Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in the place and stead of the Second Priority Representative or such other Second Priority Secured Party or in the Designated First Priority Representative’s own name, from time to time in the Designated First Priority Representative’s discretion, for the purpose of carrying out the terms of Section 5.01(a), to take any and all appropriate action and to execute any and all documents and instruments that may be necessary or desirable to accomplish the purposes of Section 5.01(a), including any termination statements, endorsements or other instruments of transfer or release.
(c)Unless and until the Discharge of First Priority Obligations has occurred, the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby consents to the application, whether prior to or after an Event of Default, of Proceeds of Shared Collateral to the repayment of First Priority Obligations pursuant to the First Priority Debt Documents; provided that nothing in this Section 5.01(c) shall be construed to prevent or impair the rights of the Second Priority Representative or the other Second Priority Secured Parties to receive Proceeds in connection with the Second Priority Obligations not otherwise in contravention of this Agreement.
(d)Notwithstanding anything to the contrary in any Second Priority Collateral Document, in the event the terms of (x) a First Priority Collateral Document and (y) a Second Priority Collateral Document each require any Grantor (i) to make payment in respect of any item of Shared Collateral, (ii) to deliver or afford control over any item of Shared Collateral to, or deposit any item of Shared Collateral with, (iii) to register ownership of any item of Shared Collateral in the name of or make an assignment of ownership of any Shared Collateral or the rights thereunder to, (iv) cause any securities intermediary, commodity intermediary or other Person acting in a similar capacity to agree to comply, in respect of any item of Shared Collateral, with instructions or orders from, or to treat, in respect of any item of Shared Collateral, as the entitlement holder, (v) hold any item of Shared Collateral in trust for (to the extent such item of Shared Collateral cannot be held in trust for multiple parties under applicable law), (vi) obtain the agreement of a bailee or other third party to hold any item of Shared Collateral for the benefit of or subject to the control of or, in respect of any item of Shared Collateral, to follow the instructions of or (vii) obtain the agreement of a landlord with respect to access to leased premises where any item of Shared Collateral is located or waivers or subordination of rights with respect to any item of Shared Collateral in favor of, in any case, both the Designated First Priority Representative and the Second Priority Representative or both the Designated First Priority Representative, such Grantor may, until the applicable Discharge of First Priority Obligations has occurred, comply with such requirement under the Second Priority Collateral Document, as it relates to such Shared Collateral by taking any of the actions set forth above only with respect to, or in favor of, the Designated First Priority Representative.
Section 5.02. Insurance and Condemnation Awards.
(a)Unless and until the Discharge of First Priority Obligations has occurred, the Designated First Priority Representative (or any person authorized by it) and the First Priority Secured Parties shall, as between the First Priority Secured Parties and the Second Priority Secured Parties, have the sole and exclusive right, subject in each case to the rights of the Grantors under the First Priority Debt Documents,
(i) to adjust settlement for any insurance policy covering the Shared Collateral in the event of any loss thereunder and (ii) to approve any award granted in any condemnation or similar proceeding affecting the Shared Collateral.
(b)Unless and until the Discharge of First Priority Obligations has occurred, and subject to the rights of the Grantors under the First Priority Debt Documents and to the terms of the First Lien Pari Passu
Intercreditor Agreement and the ABL Intercreditor Agreement, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation), if in respect of the Shared Collateral, shall be paid (i) first, prior to the occurrence of the Discharge of First Priority Obligations, to the Designated First Priority Representative for the benefit of First Priority Secured Parties pursuant to the terms of the First Priority Debt Documents, (ii) second, after the occurrence of the Discharge of First Priority Obligations, to the Second Priority Representative for the benefit of the Second Priority Secured Parties pursuant to the terms of the applicable Second Priority Debt Documents and (iii) third, if no Second Priority Obligations or First Priority Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct. If the Second Priority Representative or any other Second Priority Secured Party shall, at any time, receive any proceeds of any such insurance policy or any such award in contravention of this Agreement, it shall pay such proceeds over to the Designated First Priority Representative in accordance with the terms of Section 4.02.
(c)After the Discharge of First Priority Obligations and until the Discharge of Second Priority Obligations has occurred, and subject to the rights of the Grantors under the Second Priority Debt Documents and to the terms of the ABL Intercreditor Agreement, all proceeds of any such policy and any such award (or any payments with respect to a deed in lieu of condemnation), if in respect of the Shared Collateral, shall be paid (i) first, prior to the occurrence of the Discharge of Second Priority Obligations, to the Second Priority Representative for the benefit of Second Priority Secured Parties pursuant to the terms of the Second Priority Debt Documents, and (ii) second, if no Second Priority Obligations are outstanding, to the owner of the subject property, such other Person as may be entitled thereto or as a court of competent jurisdiction may otherwise direct.
Section 5.03. Certain Amendments.
(a)No Second Priority Collateral Document may be amended, supplemented or otherwise modified or entered into to the extent such amendment, supplement or modification, or the terms of any new Second Priority Collateral Document, would be prohibited by or inconsistent with any of the terms of this Agreement.
(b)The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that each Second Priority Debt Document shall include the following language (or language to similar effect reasonably approved by the First Priority Representative):
“Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the Second Priority Representative on the Shared Collateral (as defined in the Intercreditor Agreement referred to below) are expressly subject and subordinate to the liens and security interests granted in favor of the First Priority Secured Parties (as defined in the Intercreditor Agreement referred to below), and (ii) the exercise of any right or remedy by the Second Priority Representative or any other party hereunder in respect of such Shared Collateral is subject to the limitations and provisions of the Non-Released Multi Lien Intercreditor Agreement dated as of December 29, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Non-Released Multi Lien Intercreditor Agreement”), among GLAS USA LLC as administrative agent for the Superpriority Secured Parties, GLAS Americas LLC, as collateral agent for the Superpriority Secured Parties, U.S. Bank Trust Company, National Association, as trustee for the 2025 U.S. Notes Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 U.S. Notes Secured Parties, U.S. Bank Trust Company, National Association, as trustee for the 2025 E.U. Notes Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 E.U. Notes Secured Parties, JPMorgan Chase Bank, N.A., as administrative
agent for the 2025 Credit Agreement Secured Parties, GLAS Americas LLC, as collateral agent for the 2025 Credit Agreement Secured Parties, JPMorgan Chase Bank, N.A., as administrative agent for the 2023 Credit Agreement Secured Parties, any Additional Second Priority Representative, Diebold Nixdorf, Incorporated, as the Company, and the other Grantors (as defined therein) party thereto. In the event of any conflict between the terms of the Non-Released Multi Lien Intercreditor Agreement and the terms of this Agreement, the terms of the Non-Released Multi Lien Intercreditor Agreement shall govern.”
(c)In the event that the First Priority Representative and/or the First Priority Secured Parties enter into any amendment, waiver or consent in respect of any of the First Priority Collateral Documents for the purpose of adding to or deleting from, or waiving or consenting to any departures from any provisions of, any First Priority Collateral Document or changing in any manner the rights of the First Priority Representative, the other First Priority Secured Parties, the Company or any other Grantor thereunder (including the release of any Liens in First Priority Collateral), or make any determination as to whether any property should become subject to any Lien securing any First Priority Obligation, then such amendment, waiver, consent or determination shall apply automatically to any comparable provision of each comparable Second Priority Collateral Document without the consent of the Second Priority Representative or any other Second Priority Secured Party and without any action by the Second Priority Representative, the Company or any other Grantor, unless such automatic application would not comply with formal requirements for amending or changing documents under applicable law; provided, however, that (i) no such amendment, waiver or consent shall have the effect of removing assets subject to the Lien of any Second Priority Collateral Document, except (A) to the extent that a release of such Lien is provided for in Section 5.01(a) or Section 5.01(c), as applicable, or (B) following an Event of Default or in connection with or in lieu of any exercise of remedies by the First Priority Representative or any other First Priority Representative so long as any proceeds are applied in a manner that is consistent with this Agreement, and (ii) no such amendment shall impose any additional duties on the Second Priority Representative without its consent. The First Priority Secured Parties shall give written notice of such amendment, waiver or consent to the Second Priority Representative within ten (10) Business Days after the effectiveness of such amendment, waiver or consent; provided that the failure to give such notice shall not affect the effectiveness of such amendment, waiver, consent or determination.
(d)The First Priority Debt Documents may be amended, restated, amended and restated, waived, supplemented or otherwise modified in accordance with their terms, and the indebtedness under the First Priority Facilities may be Refinanced, in each case, without the consent of the Second Priority Representative or any other Second Priority Secured Party (except to the extent a consent is required to permit such amendment, restatement, amendment and restatement, waiver, supplement, modification or Refinancing under the Second Priority Facilities); provided, however, that, without the consent of each of the Second Priority Representative, acting with the consent of the holders of at least a majority in aggregate principal amount outstanding under the applicable Second Priority Facility, any such amendment, restatement, amendment and restatement, waiver, supplement, modification or Refinancing shall comply with, and not contravene any provision of, this Agreement.
(e)The Second Priority Debt Documents may be amended, restated, amended and restated, waived, supplemented or otherwise modified in accordance with their terms, and the indebtedness under the Second Priority Facilities may be Refinanced, in each case, without the consent of the First Priority Representative or any First Priority Secured Party (except to the extent a consent is required to permit such amendment, restatement, amendment and restatement, waiver, supplement, modification or Refinancing under the First Priority Facilities); provided, however, that, without the consent of each First Priority Representative, acting with the consent of the holders of at least a majority in aggregate principal amount outstanding under the applicable First Priority Facility, any such amendment, restatement, amendment and
restatement, waiver, supplement, modification or Refinancing shall comply with, and shall not contravene any provision of, this Agreement.
Section 5.04. Rights as Unsecured Creditors. The Second Priority Representative and the other Second Priority Secured Parties may exercise rights and remedies as unsecured creditors against the Company and any other Grantor in accordance with the terms of the Second Priority Debt Documents and applicable law so long as such rights and remedies do not violate or are not otherwise inconsistent with any provision of this Agreement (including any provision prohibiting or restricting the Second Priority Representative or the other Second Priority Secured Parties from taking various actions or making various objections, which actions or objections the Second Priority Representative and other Second Priority Secured Parties shall not pursue whether acting in such capacities or in any other capacity). Subject to Article IV, nothing in this Agreement shall prohibit the receipt by the Second Priority Representative or any other Second Priority Secured Party of the required payments of principal, premium, interest, fees and other amounts due under the Second Priority Debt Documents. In the event the Second Priority Representative or any other Second Priority Secured Party becomes a judgment Lien creditor as a result of its enforcement of its rights as an unsecured creditor in respect of Second Priority Obligations, such judgment Lien shall be subordinated to the Liens securing First Priority Obligations on the same basis as the other Liens securing the Second Priority Obligations are so subordinated to such Liens securing First Priority Obligations under this Agreement. Nothing in this Agreement shall impair or otherwise adversely affect any rights or remedies the First Priority Representative or the First Priority Secured Parties may have with respect to the First Priority Collateral.
Section 5.05. Gratuitous Bailee for Perfection.
(a)Each Representative acknowledges and agrees that if it shall at any time hold a Lien on any Shared Collateral that can be perfected by the possession or control of such Shared Collateral or of any account in which such Shared Collateral is held, and if such Shared Collateral or any such account is in fact in the possession or under the control of such Representative, or of agents or bailees of such Person (such Shared Collateral being referred to herein as the “Pledged or Controlled Collateral”), or if it shall at any time obtain any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights in or access to Shared Collateral, such Representative shall also hold such Pledged or Controlled Collateral, or take such actions with respect to such landlord waiver, bailee’s letter or similar agreement or arrangement, as sub-agent or gratuitous bailee for (i) in the case of a First Priority Representative, for itself and as the collateral agent for the applicable First Priority Secured Parties under the applicable First Priority Debt Documents, (ii) after the Discharge of First Priority Obligations, in the case of the Second Priority Representative, for itself and as the collateral agent for the Second Priority Secured Parties under the Second Priority Debt Documents, and (iii) as bailee for the benefit of or agent on behalf of the other Representatives and other Secured Parties, in each case solely for the purpose of perfecting the Liens granted under the First Priority Collateral Documents and the Second Priority Collateral Documents, respectively, and subject to the terms and conditions of this Section 5.05.
(b)In the event that the First Priority Representative (or its agents or bailees) has Lien filings against intellectual property that is part of the Shared Collateral that are necessary for the perfection of Liens in such Shared Collateral, the First Priority Representative agrees to hold such Liens as sub-agent and gratuitous bailee for the relevant Second Priority Representative and any assignee thereof, solely for the purpose of perfecting the security interest granted in such Liens pursuant to the relevant Second Priority Collateral Documents, subject to the terms and conditions of this Section 5.05.
(c)Except as otherwise specifically provided herein, until the Discharge of First Priority Obligations has occurred, the Designated First Priority Representative and the First Priority Secured Parties shall be entitled to deal with the Pledged or Controlled Collateral in accordance with the terms of the First
Priority Debt Documents as if the Liens under the Second Priority Collateral Documents did not exist. The rights of the Second Priority Representative and the other Second Priority Secured Parties with respect to the Pledged or Controlled Collateral shall at all times be subject to the terms of this Agreement.
(d)The First Priority Representative and the other First Priority Secured Parties shall have no obligation whatsoever to the Second Priority Representative or any other Second Priority Secured Party, to assure that any of the Pledged or Controlled Collateral is genuine or owned by the Grantors or to protect or preserve rights or benefits of any Person or any rights pertaining to the Shared Collateral, except as expressly set forth in this Section 5.05. The duties or responsibilities of the First Priority Representative under this Section 5.05 shall be limited solely to holding or controlling the Shared Collateral and the related Liens referred to in paragraphs (a) and (b) of this Section 5.05 as sub-agent and gratuitous bailee for the relevant Second Priority Representative for purposes of perfecting the Lien held by the Second Priority Representative.
(e)The First Priority Representative shall not have by reason of the Second Priority Collateral Documents or this Agreement, or any other document, a fiduciary relationship in respect of the Second Priority Representative or any other Second Priority Secured Party and the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby waives and releases the First Priority Representative from all claims and liabilities arising pursuant to the First Priority Representative’s roles under this Section 5.05 as sub-agents and gratuitous bailees with respect to the Shared Collateral.
(f)Upon the Discharge of First Priority Obligations, the Designated First Priority Representative shall, at the Grantors’ sole cost and expense, (i) (A) deliver to the Second Priority Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by the Designated First Priority Representative or any of its agents or bailees, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral without recourse, representation or warranty, or (B) direct and deliver such Shared Collateral as a court of competent jurisdiction may otherwise direct, (ii) notify any applicable insurance carrier that it is no longer entitled to be an additional loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (iii) notify any governmental authority involved in any condemnation or similar proceeding involving any Grantor that the Second Priority Representative is entitled to approve any awards granted in such proceeding. The Company and the other Grantors shall take such further action as is required to effectuate the transfer contemplated hereby. The First Priority Representative has no obligations to follow instructions from the Second Priority Representative or any other Second Priority Secured Party.
(g)Neither the First Priority Representative nor any of the other First Priority Secured Parties shall be required to marshal any present or future collateral security for any obligations of the Company or any Subsidiary to the First Priority Representative or any First Priority Secured Party under the First Priority Debt Documents or any assurance of payment in respect thereof, or to resort to such collateral security or other assurances of payment in any particular order, and all of their rights in respect of such collateral security or any assurance of payment in respect thereof shall be cumulative and in addition to all other rights, however existing or arising.
Section 5.06. When Discharge of Obligations Deemed to Not Have Occurred.
(a)If, at any time substantially concurrently with or after the Discharge of First Priority Obligations has occurred, the Company or any Subsidiary incurs any First Priority Obligations (other than in respect of the payment of indemnities surviving the Discharge of First Priority Obligations), then such
Discharge of First Priority Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of such designation as a result of the occurrence of such first Discharge of First Priority Obligations) and the applicable agreement governing such First Priority Obligations shall automatically be treated as a First Priority Debt Document for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Shared Collateral set forth herein and the agent, representative or trustee for the holders of such First Priority Obligations shall be the First Priority Representative for all purposes of this Agreement. Upon receipt of notice of such incurrence (including the identity of the new First Priority Representative), the Second Priority Representative shall promptly (i) enter into such documents and agreements (at the expense of the Company), including amendments, supplements or modifications to this Agreement, as the Company or such new First Priority Representative shall reasonably request in writing in order to provide the new First Priority Representative the rights of a First Priority Representative contemplated hereby, (ii) deliver to such First Priority Representative, to the extent that it is legally permitted to do so, all Shared Collateral, including all proceeds thereof, held or controlled by the Second Priority Representative or any of its agents or bailees, as applicable, including the transfer of possession and control, as applicable, of the Pledged or Controlled Collateral, together with any necessary endorsements and notices to depositary banks, securities intermediaries and commodities intermediaries, and assign its rights under any landlord waiver or bailee’s letter or any similar agreement or arrangement granting it rights or access to Shared Collateral, (iii) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (iv) notify any governmental authority involved in any condemnation or similar proceeding involving a Grantor that the new First Priority Representative is entitled to approve any awards granted in such proceeding.
(b)If, at any time substantially concurrently with or after the Discharge of Second Priority Obligations has occurred and solely to the extent permitted by the First Priority Debt Documents, the Company or any Subsidiary incurs any Second Priority Obligations (other than in respect of the payment of indemnities surviving the Discharge of Second Priority Obligations), then such Discharge of Second Priority Obligations shall automatically be deemed not to have occurred for all purposes of this Agreement (other than with respect to any actions taken prior to the date of such designation as a result of the occurrence of such first Discharge of Second Priority Obligations) and the applicable agreement governing such Second Priority Obligations shall automatically be treated as a Second Priority Debt Document for all purposes of this Agreement, including for purposes of the Lien priorities and rights in respect of Shared Collateral set forth herein and the agent, representative or trustee for the holders of such Second Priority Obligations shall be the Second Priority Representative for all purposes of this Agreement. Upon receipt of notice of such incurrence (including the identity of the new Second Priority Representative), the First Priority Representative shall promptly (i) enter into such documents and agreements (at the expense of the Company), including amendments, supplements or modifications to this Agreement, as the Company or such new Second Priority Representative shall reasonably request in writing in order to provide the new Second Priority Representative the rights of a Second Priority Representative contemplated hereby,
(ii) notify any applicable insurance carrier that it is no longer entitled to be a loss payee or additional insured under the insurance policies of any Grantor issued by such insurance carrier and (iii) notify any governmental authority involved in any condemnation or similar proceeding involving a Grantor that the new Second Priority Representative is entitled to approve any awards granted in such proceeding.
Section 5.07. Purchase Right.
(a)Without prejudice to the enforcement of any of the First Priority Secured Parties’ remedies under the First Priority Debt Documents, this Agreement, at law or in equity or otherwise, the First Priority Secured Parties agree that upon the occurrence of (i) an acceleration of any of the First Priority Obligations in accordance with the terms of the applicable First Priority Debt Documents, (ii) a payment default under any First Priority Debt Document that has not been cured or waived by the applicable First Priority Secured
Parties within 60 days of the occurrence thereof and (iii) the commencement of any Insolvency or Liquidation Proceeding with respect to any Grantor (each of such events for purposes of this paragraph, a “Triggering Event”), the Designated First Priority Representative will promptly deliver a notice of the occurrence of each Triggering Event to the Second Priority Representative (provided that none of the Designated First Priority Representative nor any First Priority Secured Party shall have any liability for failure of such notice to be delivered), and the Second Priority Secured Parties shall have the option, but not the obligation, to deliver a written notice to the First Priority Representative (a “Purchase Notice”) no later than the 15th Business Day after the occurrence of any Triggering Event (or, if later, the date that notice of such Triggering Event is delivered by the Designated First Priority Representative to the Designated Second Priority Representative) that they commit to purchase from the First Priority Secured Parties the entire aggregate amount (but not less than the entirety) of outstanding First Priority Obligations and any DIP Financing provided by the First Priority Secured Parties at the Purchase Price without warranty or representation or recourse except as provided in Section 5.07(d), on a pro rata basis from the First Priority Secured Parties. A Purchase Notice may be delivered by less than all of the Second Priority Secured Parties so long as all the purchasing Second Priority Secured Parties shall, when taken together, commit to purchase the entire aggregate amount (but not less than the entirety) as set forth above.
(b)The “Purchase Price” will equal the sum of (1) (x) with respect to the First Priority Secured Parties, the full amount of all First Priority Obligations and any DIP Financing provided by the First Priority Secured Parties then-outstanding and unpaid at par (including principal, accrued but unpaid interest and fees, applicable premiums and any other unpaid amounts, including any prepayment penalties or premiums and breakage costs) or (y) with respect to the Second Priority Secured Parties, the full amount of all Second Priority Obligations and any DIP Financing provided by the Second Priority Secured Parties then- outstanding and unpaid at par (including principal, accrued but unpaid interest and fees, applicable premiums and any other unpaid amounts, including any prepayment penalties or premiums and breakage costs), (2) the cash collateral to be furnished to the First Priority Secured Parties or the Second Priority Secured Parties providing letters of credit under the First Priority Debt Documents or the Second Priority Debt Documents, respectively, in such amount (not to exceed 103% thereof) as such First Priority Secured Parties or Second Priority Secured Parties, as applicable, determine is reasonably necessary to secure such First Priority Secured Parties or Second Priority Secured Parties in connection with any such outstanding and undrawn letters of credit and (3) all accrued and unpaid fees, expenses and other amounts (including attorneys’ fees and expenses) owed to the First Priority Secured Parties or the Second Priority Secured Parties under or pursuant to the First Priority Debt Documents or the Second Priority Debt Documents, respectively, on the date of purchase.
(c)A Purchase Notice delivered by the Second Priority Secured Parties shall be irrevocable, and the Second Priority Secured Parties and the other parties shall endeavor to close promptly after delivery thereof. Such purchase and sale of the First Priority Obligations shall be exercised pursuant to documentation mutually acceptable (with such acceptance not to be unreasonably withheld or delayed) to each of the First Priority Representative and the Second Priority Representative. Each First Priority Secured Party will retain all rights to indemnification provided in the relevant First Priority Debt Documents for all claims and other amounts relating to periods prior to the purchase of the First Priority Obligations pursuant to this Section 5.07.
(d)The purchase and sale of the First Priority Obligations and any DIP Financing provided by the First Priority Secured Parties under this Section 5.07 will be without recourse and without representation or warranty of any kind by the First Priority Secured Parties, except that the First Priority Secured Parties shall severally and not jointly represent and warrant to the Second Priority Secured Parties, on the date of such purchase, immediately before giving effect to the purchase:
(i)the principal of and accrued and unpaid interest and premium on the First Priority Obligations and any DIP Financing provided by the First Priority Secured Parties, and the fees and expenses thereof owed to the respective First Priority Secured Parties, are as stated in any assignment agreement prepared in connection with the purchase and sale of the First Priority Obligations; and
(ii)each First Priority Secured Party owns the First Priority Obligations and any DIP Financing provided by the First Priority Secured Parties purported to be owned by it free and clear of any Liens (other than participation interests not prohibited by the First Priority Debt Documents, in which case the Purchase Price will be appropriately adjusted so that the Second Priority Secured Parties, do not pay amounts represented by participation interests to the extent that the Second Priority Secured Parties, expressly assume the obligations under such participation interests).
ARTICLE VI
INSOLVENCY OR LIQUIDATION PROCEEDINGS
Section 6.01. Financing Issues.
(a)Until the Discharge of First Priority Obligations has occurred, if Company or any other Grantor shall be subject to any Insolvency or Liquidation Proceeding, then the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that if the Designated First Priority Representative shall desire to consent (or not object) to the sale, use or lease of cash constituting Shared Collateral or other Shared Collateral or to consent (or not object) to the Company’s or any other Grantor’s obtaining financing under section 363 or 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (“DIP Financing”), it will affirmatively consent to (if requested by the Designated First Priority Representative), raise no objection to and will not otherwise contest or oppose (or support any other Person in raising an objection or otherwise contesting or opposing) such sale, use or lease of such cash constituting Shared Collateral or other Shared Collateral or such DIP Financing and, except to the extent permitted by Section 6.03, the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, will not request adequate protection or any other relief in connection therewith and, to the extent the Liens securing any First Priority Obligations are subordinated to or have the same priority as the Liens securing such DIP Financing, will subordinate (and will be deemed hereunder to have subordinated) its Liens on the Second Priority Collateral, to (x) such DIP Financing (and all obligations relating thereto) on the same basis as the Liens securing the Second Priority Obligations are so subordinated to the Liens securing First Priority Obligations under this Agreement, (y) any “carve-out” for professional and United States Trustee fees agreed to by the Designated First Priority Representative, and (z) any adequate protection Liens granted to the Designated First Priority Representative or any other First Priority Secured Party. The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, further agrees that, until the Discharge of First Priority Obligations has occurred, (a) it will raise no objection to (and will not otherwise contest or oppose or support any other Person in raising an objection or otherwise contesting or opposing) any motion for relief from the automatic stay or from any injunction against foreclosure or enforcement in respect of First Priority Obligations or the First Priority Collateral made by the Designated First Priority Representative or any other First Priority Secured Party, (b) it will raise no objection to (and will not otherwise contest or oppose or support any other Person in raising an objection or otherwise contesting or opposing) any lawful exercise by any First Priority Secured Party of the right to credit bid First Priority Obligations at any sale in foreclosure of First Priority Collateral (including, without limitation, pursuant to section 363(k) of the Bankruptcy Code or any similar provision under any other applicable Bankruptcy Law) or to exercise any rights under section 1111(b) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law) with respect to the First Priority Collateral, (c) it will raise no objection to (and will not otherwise contest or oppose or support any other Person in raising an objection or otherwise contesting or opposing) any Disposition
(including pursuant to section 363 of the Bankruptcy Code or any similar provision under any other Bankruptcy Law) of assets of any Grantor for which the Designated First Priority Representative has consented or not objected that provides, to the extent such Disposition is to be free and clear of Liens, that the Liens securing the First Priority Obligations and the Second Priority Obligations will attach to the proceeds of the sale on the same basis of priority as the Liens on the Shared Collateral securing the First Priority Obligations rank to the Liens on the Shared Collateral securing the Second Priority Obligations pursuant to this Agreement, and (d) it will not directly or indirectly oppose or impede entry of any order in connection with such sale, liquidation or other disposition, including orders to retain professionals or set bid procedures in connection with such sale, liquidation or disposition, if the Designated First Priority Representative has consented to such retention of professionals and bid procedures in connection with such sale, liquidation or disposition of such assets; provided, however, that (w) the Second Priority Secured Parties are not deemed to have waived any rights to credit bid on the Shared Collateral in any such Disposition in accordance with section 363(k) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law), so long as any such credit bid provides for the payment in full in cash of the First Priority Obligations resulting in the Discharge of First Priority Obligations, and (x) (A) the Second Priority Representative is not required as a condition to such DIP Financing to release its Lien on the Collateral as the same may exist at the time of such DIP Financing and (B) such DIP Financing does not expressly require the liquidation of Collateral (excluding ordinary course discounting of accounts receivable for purposes of collection) prior to a default under the final documentation governing the DIP Financing; provided that the foregoing clauses (A) and (B) shall not restrict any such DIP Financing from containing “milestones” related to a sale transaction, any sale transaction otherwise approved by the applicable Bankruptcy Court (provided that the proceeds of such sale are applied as required hereunder) or any other actions where this Agreement provides for (or requires) the automatic release of such Liens upon a sale of Collateral. Until the Discharge of First Priority Obligations has occurred, except as provided in Section 6.01(b), without the prior written consent of the Designated First Priority Representative, none of the Second Priority Representative or any other Second Priority Secured Party may, directly or indirectly, provide DIP Financing to the Company, any Grantor or any of their Subsidiaries.
(b)Notwithstanding anything in Section 6.01(a), the Second Priority Representative or any other Second Priority Secured Party are prohibited from providing DIP Financing to the Company or any other Grantor unless (i) any liens securing such DIP Financing are junior in priority to the Liens securing any First Priority Obligations and (ii) the order approving such DIP Financing (A) includes customary stipulations as to the validity, priority, perfection, enforceability and non-avoidability of the First Priority Obligations and the Liens securing the First Priority Obligations and (B) provides for adequate protection of the Liens securing the First Priority Obligations that includes (1) periodic cash payments to the Designated First Priority Representative, for the benefit of the First Priority Secured Parties, in the amount of interest (including any default interest) accruing on the First Priority Obligations; (2) payment of the reasonable fees and expenses of the First Priority Secured Parties to the extent provided under the First Priority Debt Documents; (3) customary superpriority claims for diminution in value of the First Priority Collateral, senior in right of payment to such DIP Financing and any superpriority claim provided to the Second Priority Representative or any other Second Priority Secured Party; (4) customary adequate protection Liens securing such superpriority claims on all collateral that secures such DIP Financing, senior in priority to such DIP Financing and to any adequate protection liens granted to the Second Priority Representative or any other Second Priority Secured Party; (5) any other right granted to the Second Priority Representative or any of the Second Priority Secured Parties as adequate protection including, for the avoidance of doubt, the right to terminate the consent to the use of collateral or cash collateral upon the occurrence of agreed termination events. Notwithstanding the foregoing, the right of the Designated First Priority Representative and the other First Priority Secured Parties to object to such DIP Financing for any reason is expressly preserved.
Section 6.02. Relief from the Automatic Stay. Until the Discharge of First Priority Obligations has occurred, the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that none of them shall seek relief from the automatic stay or any other stay in any Insolvency or Liquidation Proceeding or take any action in derogation thereof without the prior written consent of the Designated First Priority Representative.
Section 6.03. Adequate Protection. The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that none of them shall object, contest or support any other Person objecting to or contesting (a) any request by the First Priority Representative or any First Priority Secured Parties for adequate protection in any form, (b) any objection by the First Priority Representative or any First Priority Secured Parties to any motion, relief, action or proceeding based on the First Priority Representative’s or any First Priority Secured Party’s claiming a lack of adequate protection or (c) the allowance and/or payment of interest, fees, expenses or other amounts of the First Priority Representative or any other First Priority Secured Party under section 506(b) or 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law (as adequate protection or otherwise). Notwithstanding anything contained in this Section 6.03 or in Section 6.01, in any Insolvency or Liquidation Proceeding, (y) if the First Priority Secured Parties are granted adequate protection in the form of a Lien on additional or replacement collateral or a superpriority claim in connection with any DIP Financing or use of cash collateral under section 363 or 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, then the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, may seek or request adequate protection in the form of (as applicable) a Lien on such additional or replacement collateral and/or a superpriority claim, which Lien and/or superpriority claim is subordinated to the Liens and or claim securing and providing adequate protection for, and claims with respect to, all First Priority Obligations and such DIP Financing (and all obligations relating thereto) and any other Liens or claims granted to the First Priority Secured Parties as adequate protection on the same basis as the other Liens securing the Second Priority Obligations are so subordinated to the Liens securing First Priority Obligations under this Agreement and (z) in the event the Second Priority Representative, for itself and on behalf of the other Second Priority Secured Parties, seeks or requests adequate protection and such adequate protection is granted in the form of a Lien on additional or replacement collateral, then the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, agrees that the First Priority Representative shall also be granted a senior Lien on such additional or replacement collateral as security and adequate protection for the First Priority Obligations and any such DIP Financing and that any Lien on such additional or replacement collateral securing or providing adequate protection for the Second Priority Obligations shall be subordinated to the Liens on such collateral securing and claims with respect to the First Priority Obligations and any such DIP Financing (and all obligations relating thereto) and any other Liens granted to the First Priority Secured Parties as adequate protection on the same basis as the other Liens securing the Second Priority Obligations are so subordinated to such Liens securing First Priority Obligations under this Agreement.
Section 6.04. Preference Issues.
(a)If any First Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason (any such amount, a “First Priority Recovery”), whether received as proceeds of security, enforcement of any right of setoff or recoupment or otherwise, then the First Priority Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the First Priority Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of First Priority Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such First Priority Recovery, this Agreement shall be reinstated in full force and effect, and such prior
termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby agrees that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference, fraudulent transfer or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.
(b)If any Second Priority Secured Party is required in any Insolvency or Liquidation Proceeding or otherwise to disgorge, turn over or otherwise pay any amount to the estate of the Company or any other Grantor (or any trustee, receiver or similar Person therefor), because the payment of such amount was declared to be or avoided as fraudulent or preferential in any respect or for any other reason (any such amount, a “Second Priority Recovery”), whether received as proceeds of security, enforcement of any right of setoff or recoupment or otherwise, then the Second Priority Obligations shall be reinstated to the extent of such Second Priority Recovery and deemed to be outstanding as if such payment had not occurred and the Second Priority Secured Parties shall be entitled to the benefits of this Agreement until a Discharge of Second Priority Obligations with respect to all such recovered amounts. If this Agreement shall have been terminated prior to such Second Priority Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto.
Section 6.05. Separate Grants of Security and Separate Classifications. The Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, acknowledges and agrees that (a) the grants of Liens pursuant to the First Priority Collateral Documents and the Second Priority Collateral Documents constitute separate and distinct grants of Liens, (b) the claims of the Second Priority Secured Parties against the Grantors constitute junior claims separate and apart (and of a different class) from the senior claims of the First Priority Secured Parties against the Grantors, and (c) because of, among other things, their differing rights in the Shared Collateral, the Second Priority Obligations are fundamentally different from the First Priority Obligations and must be separately classified in any plan of reorganization or similar dispositive restructuring plan proposed, confirmed, or adopted in any Insolvency or Liquidation Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that any claims of the First Priority Secured Parties or the Second Priority Secured Parties constitute a single class of claims (rather than separate classes of senior and junior secured claims), then the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby acknowledges and agrees that all distributions shall be made as if there were separate classes of senior and junior secured claims against the Grantors (with the effect being that, the First Priority Secured Parties shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest, fees, expenses and other claims, all amounts owing in respect of post-petition interest, fees, and expenses (whether or not a claim therefor is allowed or allowable in such Insolvency or Liquidation Proceeding) before any distribution is made in respect of the Second Priority Obligations in respect of the Shared Collateral, with the Second Priority Representative, for itself and on behalf of each other Second Priority Secured Party, hereby acknowledging and agreeing to turn over to the First Priority Representative amounts otherwise received or receivable by them in respect of the Shared Collateral to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the claim or recovery of the Second Priority Secured Parties).
Section 6.06. No Waivers of Rights. Nothing contained herein shall, except as expressly provided herein, prohibit or in any way limit the First Priority Representative or any other First Priority Secured Party from objecting in any Insolvency or Liquidation Proceeding or otherwise to any action taken by (i) any Second Priority Secured Party, including the seeking by any Second Priority Secured Party of
adequate protection or the asserting by any Second Priority Secured Party of any of its rights and remedies under the Second Priority Debt Documents or otherwise.
Section 6.07. Application. This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under section 510(a) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law, shall be effective and enforceable before, during and after the commencement of any Insolvency or Liquidation Proceeding. The relative rights as to the Shared Collateral and Proceeds shall continue after the commencement of any Insolvency or Liquidation Proceeding on the same basis as prior to the date of the petition therefor, subject to any court order approving the financing of, or use of cash collateral by, any Grantor. All references herein to any Grantor shall include such Grantor as a debtor-in- possession and any receiver or trustee for such Grantor.
Section 6.08. Other Matters. To the extent that the Second Priority Representative or any other Second Priority Secured Party has or acquires rights under section 363 or 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law with respect to any of the Shared Collateral and Proceeds, the Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, agrees not to assert any such rights in contravention of this Agreement without the prior written consent of the Designated First Priority Representative, provided that, if requested by the Designated First Priority Representative, the Second Priority Representative shall timely exercise such rights in the manner requested by the Designated First Priority Representative, including any rights to payments in respect of such rights.
Section 6.09. 506(c) Claims. Until the Discharge of First Priority Obligations has occurred, the Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, agrees that it will not assert or enforce any claim under section 506(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law senior to or on a parity with the Liens securing the First Priority Obligations for costs or expenses of preserving or disposing of any Shared Collateral.
Section 6.10. Reorganization Securities. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a plan of reorganization or similar dispositive restructuring plan, on account of the First Priority Obligations and the Second Priority Obligations, then, to the extent the debt obligations distributed on account of the First Priority Obligations and Second Priority Obligations are secured by Liens upon the same assets or property, the provisions of this Agreement will survive the distribution of such debt obligations pursuant to such plan and will apply with like effect to the Liens securing such debt obligations (it being understood and agreed that nothing in this Section 6.10 shall entitle the Second Priority Secured Parties to receive a distribution pursuant to a plan of reorganization or similar dispositive restructuring plan).
Section 6.11. Post-Petition Interest. No Second Priority Representative or any other Second Priority Secured Party shall oppose or seek to challenge any claim by the First Priority Representative or any First Priority Secured Party for allowance in any Insolvency or Liquidation Proceeding of First Priority Obligations consisting of claims for post-petition interest, fees, costs, expenses, and/or other charges, under section 506(b) of the Bankruptcy Code (or any similar provision under any other applicable Bankruptcy Law) or otherwise (for this purpose ignoring all claims and Liens held by the Second Priority Secured Parties on the Shared Collateral).
Section 6.12. Voting. No Second Priority Representative or any other Second Priority Secured Party may (in its capacity as a secured or an unsecured creditor), directly or indirectly, propose, support or vote in favor of any plan of reorganization or arrangement, liquidating plan, proposal or other dispositive restructuring plan unless such plan (i) pays off, in cash in full, all First Priority Obligations and results in the Discharge of First Priority Obligations or (ii) provides that acceptance by the class of holders of First
Priority Obligations voting thereon in accordance with section 1126(c) of the Bankruptcy Code or any similar provision of any other Bankruptcy Law is an unwaivable condition precedent to such plan’s confirmation and consummation.
ARTICLE VII RELIANCE; ETC.
Section 7.01. Reliance. The (x) consent by the First Priority Secured Parties to the execution and delivery of the Second Priority Debt Documents permitted under the First Priority Debt Documents, and (y) all loans and other extensions of credit made or deemed made on and after the date hereof by the First Priority Secured Parties to the Company or any Subsidiary, shall be deemed to have been given and made in reliance upon this Agreement. The Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, acknowledges that it and the other Second Priority Secured Parties have, independently and without reliance on the First Priority Representative or any other First Priority Secured Party based on documents and information deemed by them appropriate, made their own credit analysis and decision to enter into the Second Priority Debt Documents to which they are party or by which they are bound, this Agreement and the transactions contemplated hereby and thereby, and they will continue to make their own credit decision in taking or not taking any action under the Second Priority Debt Documents or this Agreement.
Section 7.02. No Warranties or Liability.
(a)The Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, acknowledges and agrees that neither the First Priority Representative nor any other First Priority Secured Party has made any express or implied representation or warranty, including with respect to the execution, validity, legality, completeness, collectibility or enforceability of any of the First Priority Debt Documents, the ownership of any Shared Collateral or the perfection or priority of any Liens thereon. The First Priority Secured Parties will be entitled to manage and supervise their respective loans and extensions of credit under the First Priority Debt Documents in accordance with law and consistent with this Agreement as they may otherwise, in their sole discretion, deem appropriate, and the First Priority Secured Parties may manage their loans and extensions of credit without regard to any rights or interests that the Second Priority Representative or the other Second Priority Secured Parties, have in the Shared Collateral or otherwise, except as otherwise provided in this Agreement. Neither the First Priority Representative nor any other First Priority Secured Party shall have any duty to the Second Priority Representative or any other Second Priority Secured Party to act or refrain from acting in a manner that allows, or results in, the occurrence or continuance of an event of default or default under any agreement with Company or any Subsidiary (including the Second Priority Debt Documents), regardless of any knowledge thereof that they may have or be charged with.
(b)Except as expressly set forth in this Agreement, the First Priority Representative, the other First Priority Secured Parties, the Second Priority Representative and the other Second Priority Secured Parties have not otherwise made to each other, nor do they hereby make to each other, any warranties, express or implied, nor do they assume any liability to each other with respect to (a) the enforceability, validity, value or collectibility of any of the First Priority Obligations, the Second Priority Obligations or any guarantee or security which may have been granted to any of them in connection therewith, (b) any Grantor’s title to or right to transfer any of the Shared Collateral, the ownership of any Shared Collateral or the perfection or priority of any Liens thereto or (c) any other matter except as expressly set forth in this Agreement.
Section 7.03. Obligations Unconditional. All rights, interests, agreements and obligations of the First Priority Representative, the other First Priority Secured Parties, the Second Priority Representative and the other Second Priority Secured Parties hereunder shall remain in full force and effect irrespective of:
(a)any lack of validity or enforceability of any First Priority Debt Document or any Second Priority Debt Document;
(b)any change in the time, manner or place of payment of, or in any other terms of, all or any of the First Priority Obligations or Second Priority Obligations, or any amendment or waiver or other modification, including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any First Priority Debt document or of the terms of any Second Priority Debt Document;
(c)any exchange of any security interest in any Shared Collateral or any other collateral or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the First Priority Obligations or Second Priority Obligations or any guarantee thereof;
(d)the commencement of any Insolvency or Liquidation Proceeding in respect of the Company or any other Grantor; or
(e)any other circumstances that otherwise might constitute a defense available to, or a discharge of, (i) the Company or any other Grantor in respect of any Secured Obligations or (ii) the Second Priority Representative or any other Second Priority Secured Party, in each case in respect of this Agreement.
ARTICLE VIII MISCELLANEOUS
Section 8.01. Conflicts. Subject to Section 8.19, in the event of any conflict between the provisions of this Agreement and the provisions of any First Priority Debt Document or any Second Priority Debt Document, the provisions of this Agreement shall govern. In the event of any conflict between the provisions of this Agreement and the agreements in the ABL Intercreditor Agreement among the holders of ABL Obligations and Term Debt Obligations (each as defined in the ABL Intercreditor Agreement), the provisions of the ABL Intercreditor Agreement shall govern. In the event of a conflict between the provisions of this Agreement and the First Lien Pari Passu Intercreditor Agreement, the provisions of the First Lien Pari Passu Intercreditor Agreement shall govern.
Section 8.02. Severability. In case any provision contained in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any term or provision hereof invalid or unenforceable in any respect.
Section 8.03. Amendments; Waivers.
(a)No failure or delay on the part of any party hereto in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereto are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by any party therefrom shall in any event be effective unless the same shall be permitted by Section 8.03(b), and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice or demand on any
party hereto in any case shall entitle such party to any other or further notice or demand in similar or other circumstances.
(b)This Agreement may be amended in writing signed by each Representative (in each case, acting in accordance with the documents governing the applicable Facility); provided that any such amendment, supplement or waiver that, by the terms of this Agreement, requires the Company’s consent or that increases the obligations or reduces the rights of, or otherwise adversely affects, Company or any Grantor shall require the consent of the Company. Any such amendment, supplement or waiver shall be in writing and shall be binding upon the First Priority Secured Parties, the Second Priority Secured Parties, and their respective successors and assigns.
(c)Notwithstanding the foregoing, this Agreement shall be amended, amended and restated supplemented or otherwise modified from time to time at the request of the Company, and without the consent of any Secured Party, solely to allow a Second Priority Representative to become a party hereto by execution and delivery of a Second Priority Representative Joinder Agreement in accordance with Section 8.09 of this Agreement and upon such execution and delivery, the Second Priority Representative and the other Second Priority Secured Parties and Second Priority Obligations shall be subject to the terms hereof.
(d)Notwithstanding the foregoing, upon any Refinancing in full of any First Priority Credit Facility, this Agreement shall be amended, amended and restated, supplemented or otherwise modified from time to time at the request of the Company, and without the consent of any Secured Party, solely to designate the credit facility that Refinances the First Priority Credit Facility as a replacement First Priority Credit Facility, in which case such designated credit facility shall thereafter constitute the First Priority Credit Facility; provided that each such predecessor First Priority Credit Facility shall continue to be bound by (and entitled to the benefits of) the provisions of this Agreement as applied to such First Priority Credit Facilities, the related agreements and all obligations thereunder prior to the Refinancing thereof.
(e)Upon the execution and delivery of the First Priority Credit Facility (as contemplated by preceding clause (d)):
(i)The Company shall deliver to the Representatives an officer’s certificate stating that the applicable Grantors in the case of preceding clause (d), intend to enter or have entered into a Refinancing, in whole or in part, of the First Priority Credit Facility, as the case may be, that such agreement shall thereafter (upon any such Refinancing in full) constitute the First Priority Credit Facility, and certifying that the issuance or incurrence of such Refinancing is permitted by the Debt Documents. The Representatives shall be entitled to rely conclusively on the determination of the Company that such issuance and/or incurrence does not violate the provisions of Debt Documents; provided, however, that such determination will not affect whether or not each applicable Grantor has complied with its undertakings in the Debt Documents; and
(ii)in the case of the preceding clause (d), the Company shall provide written notice of the Refinancing First Priority Credit Facility to each Representative, together with copies thereof, and identifying the new administrative agent or trustee (as applicable) and collateral agent thereunder, and providing its notice information for purposes hereof, and such administrative agent or trustee, as the case may be, and collateral agent shall each execute and deliver a joinder to this Agreement, and upon such execution shall be deemed First Priority Representatives hereunder.
Section 8.04. Information Concerning Financial Condition of the Company and the Subsidiaries. The First Priority Representative, the other First Priority Secured Parties, the Second Priority Representative and the other Second Priority Secured Parties shall have no duty to advise any other party hereunder of information known to it or them regarding such condition or any such circumstances or
otherwise. In the event that any of the First Priority Representative, any other First Priority Secured Party, the Second Priority Representative or any other Second Priority Secured Party in its sole discretion, undertakes at any time or from time to time to provide any such information to any other party, it shall be under no obligation to (a) make, and the First Priority Representative, the other First Priority Secured Parties, the Second Priority Representative or the other Second Priority Secured Parties shall not make or be deemed to have made, any express or implied representation or warranty, including with respect to the accuracy, completeness, truthfulness or validity of any such information so provided, (b) provide any additional information or provide any such information on any subsequent occasion, (c) undertake any investigation or (d) disclose any information that, pursuant to accepted or reasonable commercial finance practices, such party wishes to maintain confidential or is otherwise required to maintain confidential.
Section 8.05. Subrogation. The Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, hereby agrees not to assert any rights of subrogation it may acquire as a result of any payment hereunder until the Discharge of First Priority Obligations has occurred.
Section 8.06. Application of Payments. Except as otherwise provided herein, (x) all payments received by the First Priority Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the First Priority Obligations as the First Priority Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the First Priority Debt Documents and in accordance with the First Lien Pari Passu Intercreditor Agreement, (y) after the Discharge of First Priority Obligations has occurred, all payments received by the Second Priority Secured Parties may be applied, reversed and reapplied, in whole or in part, to such part of the Second Priority Obligations as the Second Priority Secured Parties, in their sole discretion, deem appropriate, consistent with the terms of the Second Priority Debt Documents. Except as otherwise provided herein, the Second Priority Representative, on behalf of itself and each other Second Priority Secured Party, assents to any such extension or postponement of the time of payment of the First Priority Obligations or any part thereof and to any other indulgence with respect thereto, to any substitution, exchange or release of any security that may at any time secure any part of the First Priority Obligations and to the addition or release of any other Person primarily or secondarily liable therefor.
Section 8.07. Additional Grantors. The Company agrees that, if any Subsidiary shall become a Grantor after the date hereof, it shall promptly cause such Subsidiary to become party hereto by executing and delivering an instrument in the form of Exhibit A. Upon such execution and delivery, such Subsidiary will become a Grantor hereunder with the same force and effect as if originally named as a Grantor herein. The execution and delivery of such instrument shall not require the consent of any other party hereunder, and will be acknowledged by each of the Representatives. The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Agreement.
Section 8.08. Dealings with Grantors. Upon any application or demand by the Company or any other Grantor to any Representative to take or permit any action under any of the provisions of this Agreement or under any Collateral Document (if such action is subject to the provisions hereof), the Company or such other Grantor, as appropriate, shall furnish to such Representative a certificate of an Authorized Officer (an “Officer’s Certificate”) stating that all conditions precedent, if any, provided for in this Agreement or such Collateral Document, as the case may be, relating to the proposed action have been complied with, except that in the case of any such application or demand as to which the furnishing of such documents is specifically required by any provision of this Agreement or any Collateral Document relating to such particular application or demand, no additional certificate or opinion need be furnished.
Section 8.09. Additional Second Priority Obligations.
(a)To the extent, but only to the extent, not prohibited from being incurred or issued and sold pursuant to the provisions of the then extant First Priority Debt Documents and Second Priority Debt Documents at the time of such incurrence or issuance and sale, the Company or any other Grantor may incur or issue and sell one or more series or classes of Additional Second Priority Obligations under an Additional Second Priority Facility. Any such Additional Second Priority Obligations may be secured by a second priority, subordinated Lien on all or part of the Shared Collateral, in each case under and pursuant to the relevant Second Priority Collateral Documents for such Additional Second Priority Obligations, if and subject to the condition that the Additional Second Priority Representative, acting on behalf of itself and the other Additional Second Priority Secured Parties, becomes a party to this Agreement in accordance with this Section 8.09.
(b)In order for an Additional Second Priority Representative to become a party to this Agreement:
(i)such Additional Second Priority Representative shall have executed and delivered an Additional Second Priority Representative Joinder Agreement substantially in the form of Exhibit B (with such changes as may be approved by the First Priority Representative) pursuant to which it becomes a Representative hereunder, and the Additional Second Priority Obligations and the Additional Second Priority Secured Parties become subject hereto and bound hereby as Additional Second Priority Obligations and Additional Second Priority Secured Parties;
(ii)the Company shall have delivered to the First Priority Representative an Officer’s Certificate stating that the conditions set forth in this Section 8.09 are satisfied with respect to the Additional Second Priority Obligations and, if requested by the First Priority Representative, true and complete copies of each Additional Second Priority Debt Document, certified as being true and correct by an Authorized Officer of the Company on behalf of the relevant Grantor and identifying the obligations to be designated as Additional Second Priority Obligations, and certifying that such obligations are permitted to be incurred and secured on a second priority, lien subordinated basis in accordance with each of the First Priority Debt Documents and any Second Priority Debt Documents; and
(iii)the Additional Second Priority Obligations shall provide that each Additional Second Priority Secured Party will be subject to and bound by the provisions of this Agreement in its capacity as a holder of such Additional Second Priority Obligations.
Section 8.10. Jurisdiction; Consent to Service of Process.
(a)Each of the parties hereto hereby irrevocably submits to the exclusive jurisdiction of any New York State or U.S. Federal court sitting in the Borough of Manhattan in the city of New York with respect to actions brought against it as a defendant in respect of any suit, action or proceeding or arbitral award arising out of or relating to this Agreement, the other Collateral Documents, the First Priority Debt Documents or the Second Priority Debt Documents (a “Proceeding”), and irrevocably accepts for itself and in respect of its property, generally and unconditionally, the jurisdiction of the aforesaid courts. Each of the parties hereto irrevocably waives, to the fullest extent it may do so under applicable law, trial by jury and any objection which it may now or hereafter have to the laying of the venue of any such Proceeding brought in any such court and any claim that any such Proceeding brought in any such court has been brought in an inconvenient forum.
(b)Each party to this Agreement irrevocably consents to service of process in the manner provided for in the First Priority Debt Documents or the Second Priority Debt Documents, as applicable.
Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
(c)Each of the Grantors and each Representative, on behalf of itself and the Secured Parties for whom it is acting, irrevocably agrees that, in any proceedings anywhere (whether for an injunction, specific performance or otherwise), no immunity (to the extent that it may at any time exist, whether on the grounds of sovereignty or otherwise) from such proceedings, from attachment (whether in aid of execution, before judgment or otherwise) of its assets or from execution of judgment shall be claimed by it or on its behalf or with respect to its assets, except to the extent required by applicable law, any such immunity being irrevocably waived, to the fullest extent permitted by applicable law. Each of the Grantors and each Representative, on behalf of itself and the Secured Parties for whom it is acting, irrevocably agrees that, where permitted by applicable law, it and its assets are, and shall be, subject to such proceedings, attachment or execution in respect of its obligations under this Agreement.
Section 8.11. Notices. All notices, requests, demands and other communications provided for or permitted hereunder shall be in writing and shall be sent by mail, telecopy or hand delivery:
(a)If to the Company or any other Grantor: Diebold Nixdorf, Incorporated
5995 Mayfair Road
PO Box 3077
North Canton, Ohio 44720 Telecopy No: (330) 490-4450 Attention: James Barna
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
Sullivan & Cromwell LLP 125 Broad Street
New York, New York 10004 Telecopy No: (212) 558-3588
Confirmation No: (212) 558-4000 Attention: Ari Blaut
(b)If to the Superpriority Credit Agreement Administrative Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS USA LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(c)If to the Superpriority Credit Agreement Collateral Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(d)If to the 2025 U.S. Notes Trustee, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Attention: David A. Schlabach
Email: david.schlabach@usbank.com
(e)If to the 2025 U.S. Notes Collateral Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(f)If to the 2025 E.U. Notes Trustee, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Attention: David A. Schlabach
Email: david.schlabach@usbank.com
(g)If to the 2025 E.U. Notes Collateral Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(h)If to the 2025 Credit Agreement Administrative Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
Address for Notices for matters other than Foreign Currency Advances: 131 South Dearborn St., Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing Email: jpm.agency.cri@jpmorgan.com
Agency Withholding Tax Inquiries:
Email: agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Intralinks:
Email: covenant.compliance@jpmchase.com
Address for Notices for matters relating to Foreign Currency Advances: JPMorgan Chase Bank
25 Bank Street, Canary Wharf, London, E14 5JP U.K.
Attention: Alston Lobo and Mengkang Pan; Loan and Agency Telecopy: +44 (0) (207) 777-2360
Telephone: +44 (0) (207) 742-1000 (switchboard) Email: loan_and_agency_london@jpmorgan.com
(i)If to the 2025 Credit Agreement Collateral Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(j)If to the 2023 Credit Agreement Administrative Agent, a First Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
Address for Notices for matters other than Foreign Currency Advances: 131 South Dearborn St., Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing Email: jpm.agency.cri@jpmorgan.com
Agency Withholding Tax Inquiries:
Email: agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Intralinks:
Email: covenant.compliance@jpmchase.com
Address for Notices for matters relating to Foreign Currency Advances: JPMorgan Chase Bank
25 Bank Street, Canary Wharf, London, E14 5JP U.K.
Attention: Alston Lobo and Mengkang Pan; Loan and Agency Telecopy: +44 (0) (207) 777-2360
Telephone: +44 (0) (207) 742-1000 (switchboard)
Email: loan_and_agency_london@jpmorgan.com
(k)If to the 2026 Notes Trustee, and Second Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
U.S. Bank Trust Company, National Association 1350 Euclid Avenue, Suite 1100
Cleveland, Ohio 44115 CN-OH-RN11 Attention: David A. Schlabach
Email: david.schlabach@usbank.com
(l)If to the 2026 Notes Collateral Agent, and Second Priority Representative, to the address below (or at such other address as shall be designated by it in a written notice to the Company):
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07311
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
With a copy to (which copy shall be delivered as an accommodation and shall not be required to be delivered in satisfaction of any requirement hereof):
White & Case LLP
Address: 1221 Avenue of the Americas New York, NY 10020-1095
Attention: Rob Bennett and Viktor Braun
Email: rbennett@whitecase.com and viktor.braun@whitecase.com
(m)if to any Additional Second Priority Representative, to it at the address specified by it in the Additional Second Priority Representative Joinder Agreement delivered by it pursuant to Section 8.09.
Unless otherwise specifically provided herein, all notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by fax or on the date five Business Days after dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 8.11 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 8.11. As agreed to among Company, the First Priority Representative, the Second Priority Representative and the applicable holders of Secured Obligations from time to time, notices and other communications may also be delivered by e-mail to the email address of a representative of the applicable Person provided from time to time by such Person.
Section 8.12. Further Assurances. Each Representative, on behalf of itself and the Secured Parties for whom it is acting, agrees that it will take such further action and shall execute and deliver such additional documents and instruments (in recordable form, if requested) as the other parties hereto may reasonably request to effectuate the terms of, and the Lien priorities contemplated by, this Agreement.
Section 8.13. Governing Law; Waiver of Jury Trial.
(a)This Agreement shall be construed in accordance with and governed by the laws of the State of New York without regard to principles of conflicts of laws.
(b)EACH OF PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER SECURED DEBT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 8.14. Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the Representatives and the Secured Parties, and their respective successors and assigns, and nothing herein or in any Collateral Document is intended or shall be construed to give any
other person any right, remedy or claim under, to or in respect of this Agreement, any Collateral Document, or the Shared Collateral. All obligations of the Grantors hereunder will inure to the sole and exclusive benefit of, and be enforceable by, the First Priority Representative or the Second Priority Representative, as applicable, and each present and future holder of Secured Obligations and all of their respective successors and assigns.
Section 8.15. Headings. Section, subsection and other headings used in this Agreement have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 8.16. Counterparts. The parties may sign any number of copies of this Agreement, including in electronic .pdf format. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Agreement. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication or electronic mail), each of which shall be an original and all of which together shall constitute one and the same instrument.
Section 8.17. Electronic Signatures. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement or any document to be signed in connection with this Agreement shall be deemed to include electronic signatures, including without limitation, digital signature provided by DocuSign (or such other digital signature provider as specified in writing to the First Priority Representative by any other authorized representative), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature. The Company agrees to assume all risks arising out of the use of using digital signatures and electronic methods to submit communications to the First Priority Representative, including the risk of interception and misuse by third parties.
Section 8.18. Authorization. By its signature, each Person executing this Agreement on behalf of a party hereto represents and warrants to the other parties hereto that it is duly authorized to execute this Agreement. The First Priority Representative represents and warrants that its entry into this Agreement is authorized by the First Priority Facilities. The Second Priority Representative represents and warrants that this Agreement is binding upon the Second Priority Secured Parties.
Section 8.19. Third Party Beneficiaries; Provisions Solely to Define Relative Rights. The Lien priorities set forth in this Agreement and the rights and benefits hereunder in respect of such Lien priorities shall inure solely to the benefit of the First Priority Representative, the other First Priority Secured Parties, the Second Priority Representative, the other Second Priority Secured Parties and their respective permitted successors and assigns, and no other Person (including the Grantors, or any trustee, receiver, debtor in possession or bankruptcy estate in a bankruptcy or like proceeding) shall have or be entitled to assert such rights; provided that the Company and each Grantor may assert the benefits of Section 5.01(d), Section 5.03(c), Section 5.06, Section 8.03, Section 8.08, Section 8.10 and Section 8.19. Nothing in this Agreement is intended to or shall impair the obligation of any Grantor, which is absolute and unconditional, to pay the Secured Obligations as and when the same shall become due and payable in accordance with their terms.
Section 8.20. Effectiveness. This Agreement shall become effective when executed and delivered by the parties hereto.
Section 8.21. Representatives. It is understood and agreed that (a) each Superpriority Secured Parties Representative is entering into this Agreement not in its individual capacity but solely in its capacity as collateral agent under the Superpriority Credit Agreement, and all rights, protections, indemnities and benefits applicable to the Administrative Agent and the Collateral Agent (as defined therein) under the Superpriority Credit Agreement and any other First Priority Debt Document shall also apply to the
Superpriority Secured Parties Representative hereunder, (b) each 2025 U.S. Notes Representative is entering into this Agreement not in its individual capacity but solely in its capacity as trustee and collateral agent under the 2025 U.S. Notes Indenture, and all rights, protections, indemnities and benefits applicable to the Trustee and Collateral Agent (as defined therein) under the 2025 U.S. Notes Indenture and any other First Priority Debt Document shall also apply to the 2025 U.S. Notes Representative hereunder, (c) each 2025 E.U. Notes Representative is entering into this Agreement not in its individual capacity but solely in its capacity as trustee and collateral agent under the 2025 E.U. Notes Indenture, and all rights, protections, indemnities and benefits applicable to the Trustee and the Collateral Agent (as defined therein) under the 2025 E.U. Notes Indentures and any other First Priority Debt Document shall also apply to the 2025 E.U. Notes Representative hereunder, (d) each 2025 Credit Agreement Representative is entering into this Agreement not in its individual capacity but solely in its capacity as administrative agent and collateral agent under the 2025 Credit Agreement, and all rights, protections, indemnities and benefits applicable to the Administrative Agent and Collateral Agreement (as defined therein) under the 2025 Credit Agreement and any other First Priority Debt Document shall also apply to the 2025 Credit Agreement Representative hereunder, (e) the 2023 Credit Agreement Representative is entering into this Agreement in its capacity as administrative agent and collateral agent under the 2023 Credit Agreement, and all rights, protections, indemnities and benefits applicable to the Administrative Agent and Collateral Agent (as defined therein) under the 2023 Credit Agreement shall also apply to the 2023 Credit Agreement Representative hereunder,
(f) each Second Priority Representative is entering into this Agreement not in its individual capacity but solely in its capacity as trustee and collateral agent under the 2026 Notes Indenture, and all rights, protections, indemnities and benefits applicable to the Trustee and the Collateral Agent (as defined therein) in the 2026 Notes Indenture and any other Second Priority Debt Document shall also apply to the Second Priority Representative hereunder and (g) any Additional Second Priority Representative party hereto is entering into this Agreement in its capacity as trustee or agent for the secured parties referenced in the applicable Additional Second Priority Debt Document and the corresponding exculpatory and liability- limiting provisions of such agreement applicable to such Representative thereunder shall also apply to such Representative hereunder.
Section 8.22. Survival of Agreement. All covenants, agreements, representations and warranties made by any party in this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement.
Section 8.23. Termination. Upon the Discharge of the 2023 Credit Agreement Obligations, this Agreement (including all provisions, consents and agreements herein) shall automatically terminate without notice to or action by any party hereto or any other Person, and shall cease to be in any force or effect in any and all respects.
Section 8.24. Successors. For the avoidance of doubt, any successor administrative agent, collateral agent or trustee appointed under any Series of Secured Obligations may replace the applicable Authorized Representative hereunder with respect to such series of Secured Obligations by executing a counterpart signature page hereto and delivering such signature page to each party hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
| | |
GLAS USA LLC, as Superpriority Credit Agreement Administrative Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
GLAS AMERICAS LLC, as Superpriority Credit Agreement Collateral Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
U.S. Bank Trust Company, National Association, as 2025 U.S. Notes Trustee, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
GLAS AMERICAS LLC, as 2025 U.S. Notes Collateral Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
U.S. Bank Trust Company, National Association, as 2025 E.U. Notes Trustee, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
GLAS AMERICAS LLC, as 2025 E.U. Notes Collateral Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
JPMorgan Chase Bank, N.A., as 2025 Credit Agreement Administrative Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
GLAS AMERICAS LLC, as 2025 Credit Agreement Collateral Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
JPMorgan Chase Bank, N.A., as 2023 Credit Agreement Administrative Agent, and as a First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
U.S. Bank Trust Company, National Association, as 2026 Notes Trustee, and as a Second Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
GLAS AMERICAS LLC, as 2026 Notes Collateral Agent, and as Second Priority Representative |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
| | |
Diebold Nixdorf, Incorporated |
By: |
| Name: |
| Title: |
| | |
Diebold Global Finance Corporation |
By: |
| Name: |
| Title: |
| | |
Diebold Holding Company, LLC |
By: |
| Name: |
| Title: |
| | |
Diebold SST Holding Company, LLC |
By: |
| Name: |
| Title: |
| | |
Diebold Self Service Systems |
By: |
| Name: |
| Title: |
| | |
Griffin Technology Incorporated |
By: |
| Name: |
| Title: |
| | |
[Signature Page to Non-Released Multi Lien Intercreditor Agreement] |
EXHIBIT A
[FORM OF] GRANTOR JOINDER AGREEMENT NO. [ ], dated as of [ ], 20[ ] (this “Grantor
Joinder Agreement”), to the NON-RELEASED MULTI LIEN INTERCREDITOR AGREEMENT dated as of December 29, 2022, by and among GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement (in such capacity and together with its successors in such capacity, the “Superpriority Credit Agreement Administrative Agent”), GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement (in such capacity and together with its successors in such capacity, the “Superpriority Credit Agreement Collateral Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 U.S. Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 U.S. Notes Collateral Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 E.U. Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 E.U. Notes Collateral Agent”), JPMorgan Chase Bank, N.A., as administrative agent under the 2025 Credit Agreement (in such capacity and together with its successors in such capacity, the “2025 Credit Agreement Administrative Agent”), GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement (in such capacity and together with its successors in such capacity, the “2025 Credit Agreement Collateral Agent”), JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement (in such capacity and together with its successors in such capacity, the “2023 Credit Agreement Administrative Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture (in such capacity and together with its successors in such capacity, the “2026 Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2026 Notes Indenture (in such capacity and together with its successors in such capacity, the “2026 Notes Collateral Agent”) and any Additional Second Priority Representative that from time to time becomes a party hereto pursuant to Section 8.09, and acknowledged by Diebold Nixdorf, Incorporated, an Ohio corporation (or any successor thereof, the “Company”) and the other Grantors party hereto.
A.Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Non-Released Multi Lien Intercreditor Agreement.
B.The Grantors have entered into the Non-Released Multi Lien Intercreditor Agreement. Pursuant to certain First Priority Debt Documents, certain Second Priority Debt Documents, certain newly acquired or organized Subsidiaries of the Company are required to enter into the Non-Released Multi Lien Intercreditor Agreement. Section 8.07 of the Non-Released Multi Lien Intercreditor Agreement provides that such Subsidiaries may become party to the Non-Released Multi Lien Intercreditor Agreement by execution and delivery of an instrument in the form of this Grantor Joinder Agreement. The undersigned Subsidiary (the “New Grantor”) is executing this Grantor Joinder Agreement in accordance with the requirements of the First Priority Debt Documents and the Second Priority Debt Documents.
Accordingly, the First Priority Representative and the New Grantor agree as follows:
SECTION 1. In accordance with Section 8.07 of the Non-Released Multi Lien Intercreditor Agreement, the New Grantor by its signature below acknowledges the Non-Released Multi Lien Intercreditor Agreement with the same force and effect as if originally named on the signature pages thereto as a Grantor. Each reference to a “Grantor” in the Non-Released Multi Lien Intercreditor Agreement shall be deemed to include the New Grantor. The Non-Released Multi Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. The New Grantor represents and warrants to the First Priority Representative and the other Secured Parties that this Grantor Joinder Agreement has been duly authorized, executed and delivered by it and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws affecting creditors’ rights generally and by general principles of equity.
SECTION 3. This Grantor Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Grantor Joinder Agreement shall become effective when the First Priority Representative shall have received a counterpart of this Grantor Joinder Agreement that bears the signature of the New Grantor. Delivery of an executed signature page to this Grantor Joinder Agreement by facsimile transmission or other electronic method shall be as effective as delivery of a manually signed counterpart of this Grantor Joinder Agreement.
SECTION 4. Except as expressly supplemented hereby, the Non-Released Multi Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 5. This Grantor Joinder Agreement shall be construed in accordance with and governed by the laws of the State of New York without regard to principles of conflicts of laws.
SECTION 6. In case any provision contained in this Grantor Joinder Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any term or provision hereof invalid or unenforceable in any respect.
SECTION 7. All communications and notices hereunder shall be in writing and given as provided in Section 8.10(c) of the Non-Released Multi Lien Intercreditor Agreement. All communications and notices hereunder to the New Grantor shall be given to it in care of the Company as specified in the Non-Released Multi Lien Intercreditor Agreement.
SECTION 8. The Company or the New Grantor shall reimburse the First Priority Representative for its reasonable out-of-pocket expenses in connection with this Grantor Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for the First Priority Representative.
IN WITNESS WHEREOF, the New Grantor and the First Priority Representative have duly executed this Grantor Joinder Agreement acknowledging the Non-Released Multi Lien Intercreditor Agreement as of the day and year first above written.
| | |
[NAME OF NEW GRANTOR] |
By: |
| Name: |
| Title: |
Acknowledged by:
| | |
[ ], as First Priority Representative |
By: |
| Name: |
| Title: |
| | |
[ ], as Second Priority Representative |
By: |
| Name: |
| Title: |
A-3
EXHIBIT B
[FORM OF] ADDITIONAL SECOND PRIORITY REPRESENTATIVE JOINDER
AGREEMENT NO. [ ], dated as of December 29, 2022, by and among GLAS USA LLC, as administrative agent under the Superpriority Credit Agreement (in such capacity and together with its successors in such capacity, the “Superpriority Credit Agreement Administrative Agent”), GLAS Americas LLC, as collateral agent under the Superpriority Credit Agreement (in such capacity and together with its successors in such capacity, the “Superpriority Credit Agreement Collateral Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2025 U.S. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 U.S. Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2025 U.S. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 U.S. Notes Collateral Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2025 E.U. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 E.U. Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2025 E.U. Notes Indenture (in such capacity and together with its successors in such capacity, the “2025 E.U. Notes Collateral Agent”), JPMorgan Chase Bank, N.A. as administrative agent under the 2025 Credit Agreement (in such capacity and together with its successors in such capacity, the “2025 Credit Agreement Administrative Agent”), GLAS Americas LLC, as collateral agent under the 2025 Credit Agreement (in such capacity and together with its successors in such capacity, the “2025 Credit Agreement Collateral Agent”), JPMorgan Chase Bank, N.A., as administrative agent under the 2023 Credit Agreement (in such capacity and together with its successors in such capacity, the “2023 Credit Agreement Administrative Agent”), U.S. Bank Trust Company, National Association, as trustee under the 2026 Notes Indenture (in such capacity and together with its successors in such capacity, the “2026 Notes Trustee”), GLAS Americas LLC, as collateral agent under the 2026 Notes Indenture (in such capacity and together with its successors in such capacity, the “2026 Notes Collateral Agent”) and any Additional Second Priority Representative that from time to time becomes a party hereto pursuant to Section 8.09, and acknowledged by Diebold Nixdorf, Incorporated, an Ohio corporation (or any successor thereof, the “Company”) and the other Grantors party hereto.
A.Capitalized terms used herein but not otherwise defined herein shall have the meanings assigned to such terms in the Non-Released Multi Lien Intercreditor Agreement.
B.As a condition to the ability of the Company or any other Grantor to incur Additional Second Priority Obligations and to secure such Additional Second Priority Obligations with the Second Priority Lien and to have such Additional Second Priority Obligations guaranteed by the Grantors on a second priority, lien subordinated basis, in each case, under and pursuant to the Second Priority Collateral Documents, the Additional Second Priority Representative is required to become a Representative under, and the Additional Second Priority Obligations and the Additional Second Priority Secured Parties are required to become subject to and bound by, the Non-Released Multi Lien Intercreditor Agreement as an Additional Second Priority Representative, Additional Second Priority Obligations and Additional Second Priority Secured Parties. Section 8.09 of the Non-Released Multi Lien Intercreditor Agreement provides that such Additional Second Priority Representative may become a Representative under, and such Additional Second Priority Obligations and such Additional Second Priority Secured Parties may become subject to and bound by, the Non-Released Multi Lien Intercreditor Agreement, pursuant to the execution and delivery by the Additional Second Priority Representative of an instrument in the form of this Additional Second Priority Representative Joinder Agreement and the satisfaction of the other conditions set forth in Section 8.09 of the Non-Released Multi Lien Intercreditor Agreement. The undersigned Additional Second Priority Representative (the “New Representative”) is executing this Additional Priority Representative Joinder Agreement in accordance with the requirements of the First Priority Debt Documents and the Second Priority Debt Documents.
Accordingly, the First Priority Representative and the New Representative agree as follows: B-1
SECTION 1. In accordance with Section 8.09 of the Non-Released Multi Lien Intercreditor Agreement, the New Representative (acting as trustee under [DESCRIBE ADDITIONAL SECOND PRIORITY FACILITY]), by its signature below becomes a Representative under, and the Additional Second Priority Obligations and Additional Second Priority Secured Parties become subject to and bound by, the Non-Released Multi Lien Intercreditor Agreement with the same force and effect as if the New Representative had originally been named therein as a Representative, and the New Representative, on behalf of itself and the other Additional Second Priority Secured Parties, hereby agrees to all the terms and provisions of the Non-Released Multi Lien Intercreditor Agreement applicable to it as an Additional Second Priority Representative and Second Priority Representative and to the other Additional Second Priority Secured Parties and Second Priority Secured Parties. Each reference to a “Representative”, “Additional Second Priority Representative” or “Second Priority Representative” in the Non-Released Multi Lien Intercreditor Agreement shall be deemed to include the New Representative. The Non-Released Multi Lien Intercreditor Agreement is hereby incorporated herein by reference.
SECTION 2. This Additional Second Priority Representative Joinder Agreement may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Additional Priority Representative Joinder Agreement shall become effective when the First Priority Representative shall have received a counterpart of this Second Priority Representative Joinder Agreement that bears the signature of the New Representative. Delivery of an executed signature page to this Additional Second Priority Representative Joinder Agreement by facsimile transmission or other electronic method shall be effective as delivery of a manually signed counterpart of this Additional Second Priority Representative Joinder Agreement.
SECTION 3. Except as expressly supplemented hereby, the Non-Released Multi Lien Intercreditor Agreement shall remain in full force and effect.
SECTION 4. This Additional Second Priority Representative Joinder Agreement shall be construed in accordance with and governed by the laws of the State of New York without regard to principles of conflicts of laws.
SECTION 5. In case any provision contained in this Additional Second Priority Representative Joinder Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. To the extent permitted by applicable law, the parties hereby waive any provision of law which renders any term or provision hereof invalid or unenforceable in any respect.
SECTION 6. All communications and notices hereunder shall be in writing and given as provided in Section 8.11 of the Non-Released Multi Lien Intercreditor Agreement. All communications and notices hereunder to the New Representative shall be given to it at the address set forth below its signature hereto.
SECTION 7. The Company agrees to reimburse the First Priority Representative for its reasonable out-of-pocket expenses in connection with this Additional Second Priority Representative Joinder Agreement, including the reasonable fees, other charges and disbursements of counsel for the First Priority Representative.
IN WITNESS WHEREOF, the New Representative and the First Priority Representative have duly executed this Additional Second Priority Representative Joinder Agreement to the Non-Released Multi Lien Intercreditor Agreement as of the day and year first above written.
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[NAME OF NEW REPRESENTATIVE], as New Representative |
By: |
| Name: |
| Title: |
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Address for notices: |
Attn: |
Tel: |
Fax: |
Email: |
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[ ], as First Priority Representative |
By: |
| Name: |
| Title: |
Acknowledged by:
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THE GRANTORS LISTED ON SCHEDULE I HERETO |
By: |
| Name: |
| Title: |
Schedule I to the Additional Second Priority Representative Joinder Agreement to the Non-Released Multi Lien Intercreditor Agreement
Grantors
[ ]
EXHIBIT I
FORMS OF RELEASE DOCUMENTATION
JPMORGAN CHASE BANK, N.A.
10 South Dearborn, Floor L2 Chicago, IL, 60603-2300
December 29, 2022
DIEBOLD NIXDORF, INCORPORATED
5995 Mayfair Road
North Canton, Ohio 44720-1507
Ladies and Gentlemen:
Reference is made to (i) that certain Credit Agreement, dated as of November 23, 2015 (as amended by that certain Replacement Facilities Effective Date Amendment, dated as of December 23, 2015, Second Amendment, dated as of May 6, 2016, Third Amendment, dated as of August 16, 2016, Fourth Amendment, dated as of February 14, 2017, Incremental Amendment, dated as of May 9, 2017, Fifth Amendment, dated as of April 17, 2018, Sixth Amendment and Incremental Amendment, dated as of August 30, 2018, Seventh Amendment, dated as of August 7, 2019, Eighth Amendment, dated as of February 27, 2020, Ninth Amendment, dated as of July 20, 2020, Tenth Amendment, dated as of November 6, 2020, Eleventh Amendment, dated as of March 11, 2022, Limited Waiver related thereto, dated as of October 31, 2022, Twelfth Amendment, dated as of the date hereof (the “Amendment”), and as further amended, modified or supplemented to the date hereof, the “Credit Agreement”), among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), JPMorgan Chase Bank, N.A. a national banking association, as administrative agent (in such capacity, the “Administrative Agent”), the Subsidiary Borrowers party thereto and the Lenders party thereto and (ii) the Amendment by and among the Company, the Subsidiary Borrowers party thereto, the Lenders party thereto and the Administrative Agent. Except as otherwise defined herein, all capitalized terms used in this letter (this “Letter Agreement”) and defined in the Credit Agreement or the Amendment shall be used herein as therein defined.
Pursuant to the Amendment, Consenting Lenders constituting Required Lenders irrevocably authorized and directed the Administrative Agent to enter into this Letter Agreement. The Administrative Agent, on behalf of itself and the other Secured Parties, without recourse or warranty, express or implied, by the Administrative Agent, hereby agrees that, effective upon the Twelfth Amendment Effective Date, all Liens held by the Administrative Agent on (i) all ABL Priority Collateral, (ii) all Intellectual Property Collateral (as defined in the Security Agreement), (iii) that certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to the Company (the amount of which, as of the Twelfth Amendment Effective Date, is approximately €656,000,000) and (iv) any assets of Diebold Nixdorf Global Holdings B.V. or any other Foreign Loan Party, in each case, arising under the Credit Agreement or any other Loan Document shall be terminated, irrevocably released and of no further force or effect, automatically and without the need for any further action. It is understood that this Letter Agreement does not release or otherwise affect any Lien granted to or held by us other than as expressly set forth herein.
The Administrative Agent has executed or will execute each of the release documents attached hereto as Exhibit A and (i) effective upon the Twelfth Amendment Effective Date, the Administrative Agent (or its designee) will file such documents in the appropriate registry and (ii) the Administrative Agent agrees, at the Company’s expense, to execute and deliver or otherwise file any additional documents as the Company shall reasonably request from time to time, in form and substance reasonably satisfactory to the Administrative Agent, to evidence such release. The execution and delivery of this
Release and any other Release Documents or other actions pursuant hereto shall be without recourse to or warranty by the Administrative Agent.
THIS LETTER AGREEMENT AND ANY CLAIM OR CONTROVERSY RELATING TO THE SUBJECT MATTER HEREOF, WHETHER SOUNDING IN CONTRACT LAW, TORT LAW OR OTHERWISE, SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS LETTER AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO WHETHER NOW EXISTING OR HEREAFTER ARISING, SHALL BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY (BOROUGH OF MANHATTAN) OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS LETTER AGREEMENT, EACH PARTY HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS AND AGREES THAT IT WILL NOT COMMENCE OR SUPPORT ANY SUCH ACTION OR PROCEEDING IN ANOTHER JURISDICTION. EACH PARTY HERETO IRREVOCABLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS LETTER AGREEMENT.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
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2
EXHIBIT A
Release Documents
[See attached.]
Execution Version
RELEASE OF SECURITY INTEREST IN TRADEMARKS INTELLECTUAL PROPERTY
This RELEASE OF SECURITY INTEREST IN TRADEMARKS INTELLECTUAL
PROPERTY (this “Release”), dated as of December 29, 2022 (the “Effective Date”), is made by JPMorgan Chase Bank, N.A., in its capacity as administrative agent (the “Agent”), in favor of the grantor parties identified on the signature page hereto (the “Grantors”).
WHEREAS, pursuant to that certain Security Agreement, dated as of August 12, 2016, by and among the Agent, the Grantors and certain other parties thereto (as amended, amended and restated, or otherwise modified from time to time, the “Security Agreement”), the Grantors granted to the Agent, in its capacity as Agent, a security interest in and to certain collateral;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a
Trademark Security Agreement, dated as of August 12, 2016 (the “Trademark Security Agreement”), for recordal with the United States Patent and Trademark Office;
WHEREAS, the Trademark Security Agreement was recorded with the United States Patent and Trademark Office on August 17, 2016 at Reel/Frame 5858/0235;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a
Trademark Security Agreement, dated as of October 24, 2018 (the “Supplemental Trademark Security Agreement”), for recordal with the United States Patent and Trademark Office;
WHEREAS, the Supplemental Trademark Security Agreement was recorded with the United States Patent and Trademark Office on October 25, 2018 at Reel/Frame 6512/0830;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a Trademark Security Agreement, dated as of July 20, 2020 (the “Second Supplemental Trademark Security Agreement” and together with the Supplemental Trademark Security Agreement and Trademark Security Agreement, “Trademark Security Agreements”), for recordal with the United States Patent and Trademark Office; and
WHEREAS, the Second Supplemental Security Agreement was recorded with the United States Patent and Trademark Office on July 31, 2020 at Reel/Frame 7012/0305.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agent hereby agrees as follows:
1.Defined Terms. All capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed in or otherwise referenced in the Security Agreement or the Trademark Security Agreements, as applicable.
2.Release. The Agent, without representation or warranty of any kind, hereby releases, discharges, terminates and cancels all of its security interest in and to the Trademark Collateral, including the Trademarks set forth Schedule I attached hereto, all Goodwill associated with such Trademarks, and all Proceeds of any of the foregoing. If and to the extent that the Agent has acquired any right, title or interest in and to the Trademark Collateral under the Trademark Security Agreements, the Agent, without representation or warranty of any kind, hereby re-transfers, re-conveys and re-assigns such right, title or interest to the Grantors.
3.Termination. The Agent, without representation or warranty of any kind, terminates and cancels the Trademark Security Agreements.
4.Further Assurances. The Agent agrees to take all further actions, and provide to the Grantors and their successors, assigns or other legal representatives, all such cooperation and assistance (including, without limitation, the execution and delivery of any and all documents or other instruments), reasonably requested by the Grantors, at the Grantors’ sole cost and expense, to more fully and effectively effectuate the purposes of this Release.
5.Governing Law. This Release shall be governed exclusively under the laws of the State of New York, without regard to conflicts of law or choice of law principles.
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[Schedule I omitted.]
RELEASE OF SECURITY INTEREST IN PATENTS INTELLECTUAL PROPERTY
This RELEASE OF SECURITY INTEREST IN PATENTS INTELLECTUAL PROPERTY (this
“Release”), dated as of December 29, 2022 (the “Effective Date”), is made by JPMorgan Chase Bank, N.A., in its capacity as administrative agent (the “Agent”), in favor of the grantor parties identified on the signature page hereto (the “Grantors”).
WHEREAS, pursuant to that certain Security Agreement, dated as of October 30, 2020, by and among the Agent, the Grantors and certain other parties thereto (as amended, amended and restated, or otherwise modified from time to time, the “Security Agreement”), the Grantors granted to the Agent, in its capacity as Agent, a security interest in and to certain collateral;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a Patent Security Agreement, dated as of August 12, 2016 (the “Patent Security Agreement”), for recordal with the United States Patent and Trademark Office;
WHEREAS, the Patent Security Agreement was recorded with the United States Patent and Trademark Office on August 17, 2016 at Reel/Frame 39723/0548;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a Patent Security Agreement, dated as of October 24, 2018 (the “Supplemental Patent Security Agreement”), for recordal with the United States Patent and Trademark Office;
WHEREAS, the Supplemental Patent Security Agreement was recorded with the United States Patent and Trademark Office on October 25, 2018 at Reel/Frame 47878/0974;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a Patent Security Agreement, dated as of July 20, 2020 (the “Second Supplemental Patent Security Agreement” and together with the Supplemental Patent Security Agreement and Patent Security Agreement, “Patent Security Agreements”), for recordal with the United States Patent and Trademark Office; and
WHEREAS, the Second Supplemental Patent Security Agreement was recorded with the United States Patent and Trademark Office on July 21, 2020 at Reel/Frame 53268/0908.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agent hereby agrees as follows:
1.Defined Terms. All capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed in or otherwise referenced in the Security Agreement or the Patent Security Agreements, as applicable.
2.Release. The Agent, without representation or warranty of any kind, hereby releases, discharges, terminates and cancels all of its security interest in and to the Patent Collateral, including the Patents set forth Schedule I attached hereto and all Proceeds of any of the foregoing. If and to the extent that the Agent has acquired any right, title or interest in and to the Patent Collateral under the Patent Security Agreements, the Agent, without representation or warranty of any kind, hereby re-transfers, re- conveys and re-assigns such right, title or interest to the Grantors.
3.Termination. The Agent, without representation or warranty of any kind, terminates and cancels the Patent Security Agreements.
4.Further Assurances. The Agent agrees to take all further actions, and provide to the Grantors and their successors, assigns or other legal representatives, all such cooperation and assistance (including, without limitation, the execution and delivery of any and all documents or other instruments), reasonably requested by the Grantors, at the Grantors’ sole cost and expense, to more fully and effectively effectuate the purposes of this Release.
5.Governing Law. This Release shall be governed exclusively under the laws of the State of New York, without regard to conflicts of law or choice of law principles.
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[Schedule I omitted.]
RELEASE OF SECURITY INTEREST IN COPYRIGHTS INTELLECTUAL PROPERTY
This RELEASE OF SECURITY INTEREST IN COPYRIGHTS INTELLECTUAL PROPERTY
(this “Release”), dated as of December 29, 2022 (the “Effective Date”), is made by JPMorgan Chase
Bank, N.A., in its capacity as administrative agent (the “Agent”), in favor of the grantor parties identified on the signature page hereto (the “Grantors”).
WHEREAS, pursuant to that certain Security Agreement, dated as of August 12, 2016, by and among the Agent, the Grantors and certain other parties thereto (as amended, amended and restated, or otherwise modified from time to time, the “Security Agreement”), the Grantors granted to the Agent, in its capacity as Agent, a security interest in and to certain collateral;
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a
Copyright Security Agreement, dated as of August 12, 2016 (the “Copyright Security Agreement”), for recordal with the United States Copyright Office;
WHEREAS the Copyright Security Agreement was recorded with the United States Copyright Office on August 18, 2016 at Volume/Document V9938/D608.
WHEREAS, pursuant to the Security Agreement, the Grantors executed and delivered a
Copyright Security Agreement, dated as of October 24, 2018 (the “Supplemental Copyright Security Agreement”, and together with the Copyright Security Agreement, “Copyright Security Agreements”), for recordal with the United States Copyright Office; and
WHEREAS the Supplemental Copyright Security Agreement was recorded with the United States Copyright Office on October 26, 2018 at Volume/Document V9963/D463.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agent hereby agrees as follows:
1.Defined Terms. All capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed in or otherwise referenced in the Security Agreement or the Copyright Security Agreements, as applicable.
2.Release. The Agent, without representation or warranty of any kind, hereby releases, discharges, terminates and cancels all of its security interest in and to the Copyright Collateral, including the copyright registrations and applications set forth Schedule I attached hereto and all Proceeds of any of the foregoing. If and to the extent that the Agent has acquired any right, title or interest in and to the Copyright Collateral under the Copyright Security Agreements, the Agent, without representation or warranty of any kind, hereby re-transfers, re-conveys and re-assigns such right, title or interest to the Grantors.
3.Termination. The Agent, without representation or warranty of any kind, terminates and cancels the Copyright Security Agreements.
4.Further Assurances. The Agent agrees to take all further actions, and provide to the Grantors and their successors, assigns or other legal representatives, all such cooperation and assistance (including, without limitation, the execution and delivery of any and all documents or other instruments), reasonably requested by the Grantors, at the Grantors’ sole cost and expense, to more fully and effectively effectuate the purposes of this Release.
5.Governing Law. This Release shall be governed exclusively under the laws of the State of New York, without regard to conflicts of law or choice of law principles.
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[Schedule I omitted.]
Annex I-A
Form of Lender Consent (Dollar Term B Loans)
LENDER CONSENT (DOLLAR TERM B LOANS)
Reference is made to (i) the proposed Twelfth Amendment (the “Amendment”), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Subsidiary Borrowers party thereto, the Lenders Party thereto and JPMorgan Chase Bank, N.A. a national banking association, as administrative agent (in such capacity, the “Existing Administrative Agent”), (ii) the Offer Notice and Specified Exchange Offer (in each case, as defined in the Amendment) and (iii) the proposed credit agreement substantially in the form attached to the Offer Notice as Annex I (the “New Term Loan Credit Agreement”). Unless otherwise defined herein, terms defined in the Amendment and used herein shall have the meanings given to them in the Amendment.
The undersigned Lender, by delivering an executed signature page hereto, hereby elects to (i) consent and agree to the Amendment, (ii) participate in the Specified Exchange Offer and Exchange described in the Offer Notice and (iii) consent and agree and become a party to the New Term Loan Credit Agreement. The undersigned agrees:
(i)(a) that the Existing Administrative Agent is hereby authorized and directed to enter into the Amendment and any other documents or agreements related or giving effect to the Amendment, including the First Lien Pari Passu Intercreditor Agreement substantially in the form attached to the Amendment as Exhibit G, the Non-Released Multi Lien Intercreditor Agreement substantially in the form attached to the Amendment as Exhibit H and the release documentation set forth on Exhibit I to the Amendment, and to take such further actions as described in the Amendment and (b) to be a party to the Amendment as a Consenting Dollar Term B Loan Lender;
(ii)that it elects to participate in the Specified Exchange Offer and Exchange with respect to its Dollar Term B Loans as described in the Offer Notice; and
(iii)(a) that JPMorgan Chase Bank, N.A., as administrative agent for the New Term Loan Credit Agreement (the “New Term Loan Agent”) is hereby authorized and directed to enter into the New Term Loan Credit Agreement and any other documents or agreements to give effect to the New Term Loan Credit Agreement, including the Intercreditor Agreements (as defined in the New Term Loan Credit Agreement) and any other Loan Document (as defined in the New Term Loan Credit Agreement) and take such further actions as are described in the New Term Loan Credit Agreement and (b) to be a party to the New Term Loan Credit Agreement as a Dollar Term Lender (as defined in the New Term Loan Credit Agreement).
The undersigned Lender hereby agrees that its executed signature page hereto will (i) be appended to the Amendment and serve as its signature thereto for purposes of Section 8.2(a) of the Existing Credit Agreement, and (ii) be appended to the New Term Loan Credit Agreement and serve as its signature page thereto for all purposes under the New Term Loan Credit Agreement.
Each Consenting Dollar Term B Loan Lender, effective immediately after the Twelfth Amendment Effective Date, shall be deemed to have exchanged all (but not less than all) of the principal amount of Dollar Term B Loans held by it on the Twelfth Amendment Effective Date for the same principal amount of New Dollar Term Loans (as defined in the Offer Notice) plus the Transaction Premium and, immediately after the occurrence of the Twelfth Amendment Effective Date, the Dollar Term B Loans of each Consenting Dollar Term B Loan Lender shall be
cancelled and deemed to be no longer outstanding. Each Consenting Dollar Term B Loan Lender consents to such exchange.
Notwithstanding anything to the contrary in Section 2.8 of the Existing Credit Agreement, the last day of the applicable Interest Period for all Dollar Term B Loans that are outstanding under the Existing Credit Agreement and held by any Consenting Dollar Term B Loan Lender shall be deemed to be the Twelfth Amendment Effective Date, and any accrued but unpaid interest on account of such Dollar Term B Loans shall be paid in full in cash on the Twelfth Amendment Effective Date. In addition, each Consenting Dollar Term B Loan Lender hereby waives its rights to compensation for any amounts owing pursuant to Section 3.3 of the Existing Credit Agreement.
Notwithstanding anything herein or in the Amendment to the contrary, the effectiveness of the Specified Exchange Offer and the Exchange shall be deemed to occur immediately subsequent to the effectiveness of the Amendment.
THIS LENDER CONSENT (DOLLAR TERM B LOANS) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS LENDER CONSENT (DOLLAR TERM B LOANS) AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this this Consent (or any documents to which this Consent may be appended) shall be deemed to include an executed counterpart of a signature page of this Consent (or any documents to which this Consent may be appended) by telecopy or electronic mail message (an “Electronic Signature”), deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper- based recordkeeping system, as the case may be; provided that nothing herein shall require any administrative agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent an administrative agent has agreed to accept any Electronic Signature, such administrative agent and each of the applicable Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of a Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of an administrative agent or any applicable Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart.
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[NAME OF CONSENTING DOLLAR TERM B LOAN LENDER] |
By: |
| Name: |
| Title: |
Annex I-B
Form of Lender Consent (Euro Term B Loans)
LENDER CONSENT (EURO TERM B LOANS)
Reference is made to (i) the proposed Twelfth Amendment (the “Amendment”), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Subsidiary Borrowers party thereto, the Lenders Party thereto and JPMorgan Chase Bank, N.A. a national banking association, as administrative agent (in such capacity, the “Existing Administrative Agent”), (ii) the Offer Notice and Specified Exchange Offer (in each case, as defined in the Amendment) and (iii) the proposed credit agreement substantially in the form attached to the Offer Notice as Annex I (the “New Term Loan Credit Agreement”). Unless otherwise defined herein, terms defined in the Amendment and used herein shall have the meanings given to them in the Amendment.
The undersigned Lender, by delivering an executed signature page hereto, hereby elects to (i) consent and agree to the Amendment, (ii) participate in the Specified Exchange Offer and Exchange described in the Offer Notice and (iii) consent and agree and become a party to the New Term Loan Credit Agreement. The undersigned agrees:
(i)(a) that the Existing Administrative Agent is hereby authorized and directed to enter into the Amendment and any other documents or agreements related or giving effect to the Amendment, including the First Lien Pari Passu Intercreditor Agreement substantially in the form attached to the Amendment as Exhibit G, the Non-Released Multi Lien Intercreditor Agreement substantially in the form attached to the Amendment as Exhibit H and the release documentation set forth on Exhibit I to the Amendment, and to take such further actions as described in the Amendment and (b) to be a party to the Amendment as a Consenting Euro Term B Loan Lender;
(ii)that it elects to participate in the Specified Exchange Offer and Exchange with respect to its Euro Term B Loans as described in the Offer Notice; and
(iii)(a) that JPMorgan Chase Bank, N.A., as administrative agent for the New Term Loan Credit Agreement (the “New Term Loan Agent”) is hereby authorized and directed to enter into the New Term Loan Credit Agreement and any other documents or agreements to give effect to the New Term Loan Credit Agreement, including the Intercreditor Agreements (as defined in the New Term Loan Credit Agreement) and any other Loan Document (as defined in the New Term Loan Credit Agreement) and take such further actions as are described in the New Term Loan Credit Agreement and (b) to be a party to the New Term Loan Credit Agreement as a Euro Term Lender (as defined in the New Term Loan Credit Agreement).
The undersigned Lender hereby agrees that its executed signature page hereto will (i) be appended to the Amendment and serve as its signature thereto for purposes of Section 8.2(a) of the Existing Credit Agreement, and (ii) be appended to the New Term Loan Credit Agreement and serve as its signature page thereto for all purposes under the New Term Loan Credit Agreement.
Each Consenting Euro Term B Loan Lender, effective immediately after the Twelfth Amendment Effective Date, shall be deemed to have exchanged all (but not less than all) of the principal amount of Euro Term B Loans held by it on the Twelfth Amendment Effective Date for:1
the same principal amount of New Euro Term Loans (as defined in the Offer Notice) plus the Transaction Premium
the same principal amount (subject to the exchange rate described in the Offer Notice) of New Dollar Term Loans (as defined in the Offer Notice) plus the Transaction Premium
and, immediately after the occurrence of the Twelfth Amendment Effective Date, the Euro Term B Loans of each Consenting Euro Term B Loan Lender shall be cancelled and deemed to be no longer outstanding. Each Consenting Euro Term B Loan Lender consents to such exchange.
Notwithstanding anything to the contrary in Section 2.8 of the Existing Credit Agreement, the last day of the applicable Interest Period for all Euro Term B Loans that are outstanding under the Existing Credit Agreement and held by any Consenting Euro Term B Loan Lender shall be deemed to be the Twelfth Amendment Effective Date, and any accrued but unpaid interest on account of such Euro Term B Loans shall be paid in full in cash on the Twelfth Amendment Effective Date. In addition, each Consenting Euro Term B Loan Lender hereby waives its rights to compensation for any amounts owing pursuant to Section 3.3 of the Existing Credit Agreement.
Notwithstanding anything herein or in the Amendment to the contrary, the effectiveness of the Specified Exchange Offer and the Exchange shall be deemed to occur immediately subsequent to the effectiveness of the Amendment.
THIS LENDER CONSENT (EURO TERM B LOANS) SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS LENDER CONSENT (EURO TERM B LOANS) AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this this Consent (or any documents to which this Consent may be appended) shall be deemed to include an executed counterpart of a signature page of this Consent (or any documents to which this Consent may be appended) by telecopy or electronic mail message (an “Electronic Signature”), deliveries or the keeping of records in any electronic form (including deliveries by telecopy, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-
1 Please indicate with an “x” only one of the following options.
based recordkeeping system, as the case may be; provided that nothing herein shall require any administrative agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent an administrative agent has agreed to accept any Electronic Signature, such administrative agent and each of the applicable Lenders shall be entitled to rely on such Electronic Signature purportedly given by or on behalf of a Borrower or any other Loan Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of an administrative agent or any applicable Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart.
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[NAME OF CONSENTING EURO TERM B LOAN LENDER] |
By: |
| Name: |
| Title: |
Annex II
Exchange Mechanics
Exhibit I
EXCHANGE MECHANICS
Reference is made to (1) the Credit Agreement, dated as of November 23, 2015 (as amended by that certain Replacement Facilities Effective Date Amendment, dated as of December 23, 2015, Second Amendment, dated as of May 6, 2016, Third Amendment, dated as of August 16, 2016, Fourth Amendment, dated as of February 14, 2017, Incremental Amendment, dated as of May 9, 2017, Fifth Amendment, dated as of April 17, 2018, Sixth Amendment and Incremental Amendment, dated as of August 30, 2018, Seventh Amendment, dated as of August 7, 2019, Eighth Amendment, dated as of February 27, 2020, Ninth Amendment, dated as of July 20, 2020, Tenth Amendment, dated as of November 6, 2020, Eleventh Amendment, dated as of March 11, 2022, Limited Waiver related thereto, dated as of October 31, 2022, Twelfth Amendment, dated as December 29, 2022 (the “Amendment”) and as further amended, amended and restated, supplemented or otherwise modified through the Closing Date, the “Existing Credit Agreement”), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “Existing Agent”), the Subsidiary Borrowers party thereto and the Lenders party thereto and (2) the Credit Agreement, dated as of December 29, 2022 (the “New Credit Agreement”), by and among the Company, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity, the “New Agent”) and GLAS Americas LLC, as collateral agent (the “Collateral Agent”). Capitalized terms used and not otherwise defined herein shall have the respective meanings given to such terms in the New Credit Agreement.
Each of the Persons executing and delivering the New Credit Agreement, in each case as a Term Lender under the New Credit Agreement is, immediately prior to giving effect to the New Credit Agreement, a Term B Lender (under and as defined in the Existing Credit Agreement) (each such lender in relation to the Dollar denominated Term B Loans it holds, an “Existing Dollar Term B Lender” and collectively, the “Existing Dollar Term B Lenders” and each such lender in relation to the Euro denominated Term B Loans it holds, an “Existing Euro Term B Lender” and collectively, the “Existing Euro Term B Lenders”; the Existing Euro Term B Lenders and the Existing Dollar Term B Lenders are collectively referred to herein as the “Existing Lenders”) of record holding, as of the time immediately subsequent to the effectiveness of the Amendment (the “Exchange Effective Time”), term loans outstanding under the Existing Credit Agreement (such existing term loans under the Existing Credit Agreement, to the extent denominated in Dollars, the “Existing Dollar Term B Loans” and the amount thereof the “Existing Dollar Term B Amount” and such existing term loans under the Existing Credit Agreement, to the extent denominated in Euro, the “Existing Euro Term B Loans” and the amount thereof the “Existing Euro Term B Amount”; the Existing Euro Term B Loans and the Existing Dollar Term B Loans are collectively referred to herein as the “Existing Loans”; the Existing Euro Term B Amount and the Existing Dollar Term B Amount are collectively referred to herein as the “Existing Term Amount”) and agrees to the exchange and settlement of such Existing Term B Loans on the terms set forth in this Exhibit I (the “Exchange Mechanics”).
Pursuant to the New Credit Agreement, each Existing Lender will make new term loans under the New Credit Agreement (such new loans, the “New Term Loans”) to the Company in exchange for and in satisfaction of its Existing Loans. The Company hereby offers to each Existing Lender to exchange all (but not less than all) of the Existing Loans of an applicable currency held by such Existing Lender at the Exchange Effective Time for New Term Loans in an aggregate principal amount and in the same currency equal to the aggregate principal amount of the applicable Existing Loans so exchanged (provided that all (but not less than all) of an Existing
Lender’s Existing Euro Term B Loans may be exchanged for either (x) the same principal amount of New Term Loans denominated in euros or (y) the equivalent principal amount (subject to the exchange rate described below) of New Term Loans denominated in dollars, with the exchange rate used for such conversion of the existing principal amount denominated in euros to the equivalent new principal amount denominated in dollars to be determined by reference to the WMR 4pm London Mid Spot Rate published by Refinitiv at 4:00 p.m. (London Time) on the date that is two Business Days prior to the date on which the Exchange Effective Time occurs as determined by the Existing Agent in its sole discretion (such rate of exchange, the “Spot Rate”)), which shall be governed by the New Credit Agreement and the related Loan Documents as defined therein, and each Existing Lender hereby agrees to accept such offer of exchange.
Upon satisfaction of the conditions precedent set forth in Section 4.1 of the New Credit Agreement (including the Company paying to the Existing Agent on the Closing Date in cash, for the account of each Existing Lender participating in the New Credit Agreement, all interest and other non-principal amounts then accrued but unpaid by the Company to such Existing Lender in respect of such Existing Lender’s Existing Loans at the Exchange Effective Time (and invoiced to the Company prior to the Exchange Effective Time)) and the funding (or deemed funding) of the New Term Loans by the applicable Existing Lender at the Exchange Effective Time, and notwithstanding anything to the contrary contained in the Existing Credit Agreement, (i) all of the Company’s obligations in respect of the Existing Loans of each Existing Lender shall be deemed to have been discharged and satisfied in full and (ii) each Existing Lender’s outstanding principal amount of term loans and term loan commitments under the Existing Credit Agreement (such advances, the “Existing Advances” and such commitments, the “Existing Commitments”) shall be reduced by the aggregate principal amount of the Existing Advances and Existing Commitments, respectively, that are exchanged for Term Loans and Term Commitments, respectively, under the New Credit Agreement (it being understood, for the avoidance of doubt, that the foregoing shall also apply to an exchange of an Existing Euro Term B Loan into a New Dollar Term B Loan at the Spot Rate). Upon the Existing Agent marking the Register (as defined in the Existing Credit Agreement) as contemplated below, (x) each Existing Lender shall become a “Lender”, a “Term Lender”, a “Dollar Term Lender” and/or “Euro Term Lender”, as applicable, pursuant to, and for all purposes under, the New Credit Agreement with respect to its New Term Loans and (y) all Existing Commitments shall be canceled, and the Term Commitments in respect of the New Term Loans, as applicable, shall be set forth on Schedule 1.1(a) to the New Credit Agreement. The Existing Agent’s determination and entry and completion of such Register shall be conclusive, in each case, absent clearly demonstrable error. For the avoidance of doubt, it is acknowledged and agreed between the Company and each Existing Lender that, notwithstanding anything to the contrary contained in the Existing Credit Agreement, each Existing Lender has agreed to accept, as satisfaction in full of its right to receive payment of the Existing Term Amount and all other amounts owing to such Existing Lender under or in respect of the Existing Credit Agreement, the right to receive for no additional consideration such New Term Loans in accordance herewith. Notwithstanding anything to the contrary, each Existing Lender agrees to waive its right to compensation for any amounts owing under Section 3.3 of the Existing Credit Agreement.
By executing and delivering the New Credit Agreement, each Existing Lender (a) represents and warrants that (i)(A) it has full power and authority, and has taken all action necessary, to execute and deliver the New Credit Agreement and to consummate the exchange and the other transactions contemplated hereby and thereby and to become a Lender under the New Credit Agreement in respect of its New Term Loans, and (B) neither its execution and delivery of the New Credit Agreement nor the consummation of the transactions contemplated hereby or thereby conflict with such Existing Lender’s organizational documents or fund
documentation (including any applicable investment limitations) or material contractual obligations or with any applicable law or regulation, (ii) from and after the Exchange Effective Time, it shall be bound by the provisions of the New Credit Agreement as a Lender thereunder and shall have the obligations of Lender thereunder and (iii) it has received a copy of the New Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.1 of the Existing Credit Agreement, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into the New Credit Agreement and these Exchange Mechanics and to accept the New Term Loans, on the basis of which it has made such analysis and decision independently and without reliance on the Existing Agent, the New Agent, the Collateral Agent, any Related Party (as defined in the Existing Credit Agreement and the New Credit Agreement) of the foregoing, or any other Lender; and (b) agrees that (i) it will, independently and without reliance on the Existing Agent, the New Agent, the Collateral Agent, any Related Party (as defined in the Existing Credit Agreement and the New Credit Agreement) of the foregoing, or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents (as defined in the New Credit Agreement), (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender thereunder, and (iii) it hereby irrevocably appoints, designates and authorizes the New Agent and the Collateral Agent to take such action on its behalf under the provisions of the New Credit Agreement and each other Loan Document and to exercise such powers and perform such duties as are expressly delegated to it by the terms of the New Credit Agreement or any other Loan Document, together with such powers as are reasonably incidental thereto, including, without limitation, pursuant to Article XI of the New Credit Agreement.
In order to evidence the exchange contemplated above, the Existing Lenders hereby authorize and direct the Existing Agent to, upon the occurrence of the Exchange Effective Time (and the payment in cash of all interest and other non-principal amounts then owing by the Company to such Existing Lender in respect of such Existing Lender’s Existing Loans at the Exchange Effective Time), mark the Register (as defined in the Existing Credit Agreement) to reflect that (i) the Existing Loans of each Existing Lender in the amount equal to such Existing Lender’s Existing Loans that are exchanged for New Term Loans are no longer outstanding, (ii) the Existing Commitments have been cancelled and (iii) take such other actions in connection herewith and to effectuate the transactions contemplated hereby as the Existing Agent shall reasonably determine. None of the Existing Agent, the New Agent, the Collateral Agent any Related Party (as defined in the Existing Credit Agreement and the New Credit Agreement) of the foregoing, nor any of their respective affiliates (each of the foregoing, an “Agent-Related Person”), shall be liable to any Existing Lender, any Lender, the Company or any of their respective affiliates, equity holders or debt holders for any losses, costs, damages or liabilities incurred, directly or indirectly, as a result of any Agent-Related Person, or their counsel or other representatives, taking any action pursuant to the Existing Credit Agreement, the New Credit Agreement or these Exchange Mechanics or executing the New Credit Agreement, except, in each case, to the extent arising from any Agent-Related Person's gross negligence or willful misconduct, as determined in a final non-appealable judgment of a court of competent jurisdiction. Each Existing Lender agrees to indemnify and hold harmless each Agent-Related Person in accordance with the Existing Credit Agreement and the New Credit Agreement, as applicable, and the Company confirms its obligations to the applicable parties in accordance with, and to the extent expressly set forth in, Section 10.6(b) of the Existing Credit Agreement and the New Credit Agreement, as applicable.
As among the New Agent, each Existing Lender and the Company, it is understood and agreed that these Exchange Mechanics shall satisfy any requirement under the New Credit Agreement to effectuate the exchange of the New Term Loans as set forth herein.
THESE EXCHANGE MECHANICS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES IN CONNECTION WITH THE EXCHANGE MECHANICS AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THE EXCHANGE MECHANICS (INCLUDING, WITHOUT LIMITATION, ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Annex III
ARTICLE XI
THE AGENTS
11.1.Appointment. Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
11.2.[Reserved].
11.3.Limitation of Duties and Immunities. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties or be held to be a trustee or fiduciary for any Secured Party, regardless of whether a Default or Unmatured Default has occurred and is continuing, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as required hereunder); provided that the Administrative Agent shall not be required to take any action that, in their opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law;, (c) except as expressly set forth herein, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Administrative Agent or any of its Affiliates in any capacity, (d) the Administrative Agent reserves the right to conduct a Phase I environmental assessment prior to foreclosing on any real estate Collateral or mortgage Collateral, (e) the Administrative Agent reserves the right to forebear from foreclosing in its own name if to do so may expose it to undue risk, (f) in the event that, following a foreclosure in respect of any Collateral, the Administrative Agent acquires title to any portion of such Collateral or takes any managerial action of any kind in regard thereto in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Administrative Agent’s sole discretion may cause the Administrative Agent to be considered an “owner or operator” under the provisions of CERCLA or otherwise cause the Administrative Agent to incur liability under CERCLA or any other Federal, state or local law, the Administrative Agent reserves the right, instead of taking such action, to either resign as Administrative Agent or arrange for the transfer of the title or control of the asset to a court appointed receiver, (g) the Administrative Agent shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity; and (h) the duties or obligations of the Administrative Agent shall be solely mechanical and administrative in nature. The Administrative Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.2.1) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent shall each be deemed not to have knowledge of any Default or Unmatured Default unless and until written notice stating such notice is a notice of an Unmatured Default or Default thereof is given to the Administrative Agent by the Company or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
11.4.Reliance on Third Parties. The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. The Administrative Agent also may rely upon any statement made in writing and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
11.5.Sub-Agents. The Administrative Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub- agent, and shall apply to its activities as Administrative Agent.
11.6.Successor Agent. The Administrative Agent may resign upon 30 days’ notice by notifying the Lenders and the Company. Upon any such notice of resignation, the Required Lenders shall have the right, with the Company’s consent, to appoint a successor from among the Lenders that is a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the Lenders, appoint a successor Administrative Agent reasonably acceptable to the Company which shall (unless an Event of Default shall have occurred and be continuing) be subject to approval by the Borrower. Upon the acceptance of its appointment the Administrative Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent. Whether or not a successor has been appointed such resignation shall become effective in accordance with the notice given by the Administrative Agent and the retiring Administrative Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.6 shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and its Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent.
11.7.Independent Credit Decisions. Each Lender acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities.
11.8.Arrangers. No Arranger shall any obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
11.9.Permitted Release of Collateral and Guarantors.
(a)Automatic Release. If any Collateral is the subject of a Disposition (other than to another Loan Party) which is permitted under Section 6.14, the Liens in such Collateral granted under the Loan Documents shall automatically terminate with respect to such Collateral, and such Collateral will be disposed of free and clear of all such Liens.
(b)Written Release. The Administrative Agent is authorized to release of record, and shall release of record, any Liens encumbering any Collateral that is the subject of a Disposition described in clause (a) above upon an authorized officer of the Company certifying in writing to the Administrative Agent that the proposed Disposition of Collateral is not to a Loan Party and is permitted under Section 6.14. To the extent the Administrative Agent is required to execute any release documents in accordance with the immediately preceding sentence, the Administrative Agent shall do so promptly upon request of the Company without the consent or further agreement of any Secured Party. If the Disposition of Collateral is not permitted under or pursuant to the Loan Documents, the Liens encumbering the Collateral may only be released in accordance with the other provisions of this Section 11.9 or the provisions of Section 8.2.
(c)Other Authorized Release and Subordination. The Administrative Agent is irrevocably authorized by the Secured Parties, without any consent or further agreement of any Secured Party to: (i) subordinate the Liens granted to the Administrative Agent to secure the Obligations with respect to any Property which is permitted to be subject to a Lien permitted under this Agreement,
(ii) release the Administrative Agent’s Liens upon the termination in full of the Commitments and the repayment in full of all Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) and (iii) release the Administrative Agent’s Liens upon any Collateral that becomes an Excluded Asset; provided, that if as of the date of the requested release under clause (i): (A) the Company is subject to a proceeding of the type described in Section 7.6 or 7.7, or (B) the Administrative Agent is applying the proceeds of Collateral in accordance with Section 2.10(b), then the Administrative Agent shall not release its Liens until termination in full of the Commitments and the repayment in full of all Obligations.
(d)Authorized Release of Guarantors. If the Administrative Agent shall have received a certificate of an Authorized Officer of the Company requesting the release of a Guarantor, certifying that the Administrative Agent is authorized to release such Guarantor because (x) the Capital Stock issued by such Guarantor have been disposed of to a Person other than a Loan Party in a transaction permitted by Section 6.14 (or with the consent of the Required Lenders pursuant to Section 8.2)) or (y) such Guarantor is no longer required to provide a guaranty pursuant to Section 2.18 (including, but not limited to, the release upon or after the Closing Date of any Guarantor that is an Excluded Subsidiary), then the Administrative Agent is irrevocably authorized by the Secured Parties, without any consent or further agreement of any Secured Party to release the Liens granted to the Administrative Agent to secure the Obligations in the assets of such Guarantor and release such Guarantor from all obligations under the Loan Documents. To the extent the Administrative Agent is required to execute any release documents in accordance with the immediately preceding sentence, the Administrative Agent shall do so promptly upon request of the Company without the consent or further agreement of any Secured Party.
(e)Intercreditor Arrangements.
(i)The Administrative Agent is authorized to enter into or amend any intercreditor or subordination agreement with respect to Indebtedness (including the Intercreditor Agreements)
that is (a) required or permitted to be subordinated hereunder and/or (b) secured by Liens and which Indebtedness contemplates or would necessitate an intercreditor, subordination or collateral trust agreement (any such agreement, an “Additional Agreement”), and the Secured Parties acknowledge that the Additional Agreements are binding upon them. Each Secured Party (a) agrees that it will be bound by, and will not take any action contrary to, the provisions of any Additional Agreement and (b) hereby authorizes and instructs the Administrative Agent to enter into the Additional Agreements and to subject the Liens on the Collateral securing the Obligations to the provisions thereof.
(ii)The Administrative Agent is expressly instructed by each Lender to enter into the New ABL Intercreditor Agreement in its capacity as Existing Term Administrative Agent (as defined in the New ABL Intercreditor Agreement) and on behalf of each Lender.
11.10.Perfection by Possession and Control. The Administrative Agent hereby appoints each of the other Lenders to serve as bailee to perfect the Administrative Agent’s Liens in any Collateral (other than deposit, securities or commodity accounts) in the possession of any such other Lender and each Lender possessing any such Collateral agrees to so act as bailee for the Administrative Agent in accordance with the terms and provisions hereof.
11.11.Lender Affiliates Rights. By accepting the benefits of the Loan Documents, any Person (other than a party hereto) (a “non-Party Secured Party”) that is owed any Obligation is bound by the terms of the Loan Documents. But notwithstanding the foregoing: (a) neither the Administrative Agent, any Lender nor any Loan Party shall be obligated to deliver any notice or communication required to be delivered to any Lender under any Loan Documents to any non-Party Secured Party and (b) no non-Party Secured Party that is owed any Obligation shall be included in any voting determinations under the Loan Documents or entitled to consent to, reject, or participate in any manner in any amendment, waiver or other modification of any Loan Document. The Administrative Agent shall not have any liabilities, obligations or responsibilities of any kind whatsoever to any non-Party Secured Party who is owed any Obligation. The Administrative Agent shall deal solely and directly with the parties to the Loan Documents in connection with all matters relating to the Loan Documents. The Obligation owed to any non-Party Secured Party that is an Affiliate of a Lender (or a Person that was a Lender at the time of designation of any such obligation as an Obligation) shall be considered the Obligation of its related Lender for all purposes under the Loan Documents and such Lender shall be solely responsible to the other parties hereto for all the obligations of such Affiliate under any Loan Document.
11.12.[Reserved].
11.13.Actions in Concert. Notwithstanding anything contained in any of the Loan Documents, the Company, the Administrative Agent and each Lender hereby agree that (A) no Secured Party shall have any right individually to realize upon any of the Collateral under any Security Documents or to enforce the guarantee set forth in any Guaranty, it being understood and agreed that all powers, rights and remedies under any Guaranty and the Security Documents may be exercised solely by the Administrative Agent (acting at the direction of the Required Lenders) for the benefit of the Secured Parties in accordance with the terms thereof and (B) in the event of a foreclosure by the Administrative Agent (acting at the direction of the Required Lenders) on any of the Collateral pursuant to a public or private sale, the Administrative Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Administrative Agent, as agent for and representative of the Secured Parties (but not any Secured Party in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold in any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such sale.
11.14.Additional Exculpatory Provisions.
(f)The Administrative Agent:
(i)shall not be liable for any action taken or not taken by it, in each case, in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Unmatured Default or Default unless and until notice describing such Unmatured Default or Default is given to the Administrative Agent in writing by the Company or a Lender;
(ii)shall not be responsible for or have any duty to ascertain or inquire into: (1) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (3) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Unmatured Default or Default; (4) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document (5) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to ensure that any Liens granted to the Administrative Agent pursuant to this Agreement or any other Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, or (6) the satisfaction of any condition set forth in Article IV or elsewhere herein or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not have any responsibility, for or liability with respect to, monitoring compliance of any other party to the Loan Documents or any other document related hereto or thereto. The Administrative Agent shall not have any duty to monitor the value or rating of any Collateral on an ongoing basis.;
(iii)shall not be accountable for the use or application by any Person of disbursements properly made by the Administrative Agent in conformity with the provisions of the Loan Documents or of moneys received from the Loan Parties; or
(iv)shall not be required to take any action, perform any duties or responsibilities or exercise any rights, powers, authorities or discretions that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose it to liability (financial or otherwise) or that is contrary to any Loan Document or applicable law (for the avoidance of doubt, the Administrative Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Loan Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions).
(g)The Administrative Agent shall be entitled to request written instructions, or clarification of any instruction, from the Required Lenders (or, if the relevant Loan Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Administrative Agent may refrain from acting unless and until it receives those written instructions or that clarification. In the absence of written instructions, the Administrative Agent may act (or refrain from acting) as it considers to be in the best interests of the Lenders. If in the administration of the Loan Documents the Administrative Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Administrative Agent (unless other evidence shall be herein
specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon instructions from the Required Lenders.
(h)In no event shall the Administrative Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(i)The Administrative Agent shall not be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other security documents pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other security document pertaining to this matter.
(j)Beyond the exercise of reasonable care in the custody thereof, the Administrative Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Administrative Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Administrative Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
(i)[Reserved].
11.15.Certain Acknowledgement of Lenders.
(k)Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 11.15 shall be conclusive, absent manifest error.
(l)Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with
respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(m)The Company and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Company or any other Loan Party except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Company.
(n)Each party’s obligations under this Section 11.15 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
11.16.Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify the Administrative Agent and each of its Affiliates, and each of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents and sub-agents, to the extent that the Administrative Agent shall not have been reimbursed by any Loan Party (but without limiting such Loan Party’s reimbursement obligations hereunder), for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including fees and disbursements of financial and legal advisors) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the Administrative Agent or any of its Affiliates, or any of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents or sub-agents, in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as the Administrative Agent in any way relating to or arising out of this Agreement or the other Loan Documents; provided no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction. If any indemnity furnished to the Administrative Agent for any purpose shall, in the opinion of the Administrative Agent, be insufficient or become impaired, the Administrative Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided in no event shall this sentence require any Lender to indemnify the Administrative Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further this sentence shall not be deemed to require any Lender to indemnify the Administrative Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. Without limiting the foregoing, each Lender agrees to reimburse the Administrative Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the
Administrative Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Loan Documents, to the extent that the Administrative Agent are not reimbursed for such expenses by the Company or another Loan Party. Amounts payable pursuant to this Section 11.16 shall be payable on demand.
11.17.Collateral and Intercreditor Matters.
(o)Notwithstanding anything to the contrary herein, it is understood and agreed that (i) prior to the termination in full of the Commitments (as defined in the Superpriority Credit Agreement and the 2025 Credit Agreement (each as defined in the Non-Released Multi Lien Intercreditor Agreement (as defined below)), respectively) and payment in full of all Obligations (as defined in the Superpriority Credit Agreement and the 2025 Credit Agreement, respectively) (in each case, other than in connection with a Permitted Refinancing (as defined in the Superpriority Credit Agreement and the 2025 Credit Agreement, respectively) of the Superpriority Credit Agreement or the 2025 Credit Agreement, as the case may be) and (ii) while the Existing USD Secured Notes and the Existing EUR Secured Notes (each as defined in the New ABL Intercreditor Agreement), in each case, remain outstanding, to the extent that the Superpriority Credit Agreement Collateral Agent, the 2025 Credit Agreement Collateral Agent, the 2025 U.S. Notes Collateral Agent and/or the 2025 E.U. Notes Collateral Agent (each as defined in the Non-Released Multi Lien Intercreditor Agreement), as applicable, is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral (including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date), the Administrative Agent shall be deemed to be satisfied with such deliveries and/or documents and the judgment of the Superpriority Credit Agreement Collateral Agent, the 2025 Credit Agreement Collateral Agent, the 2025 U.S. Notes Collateral Agent and/or the 2025 E.U. Notes Collateral Agent, as applicable, in respect of any such matters under the Superpriority Credit Agreement, the 2025 Credit Agreement, the 2025 U.S. Notes Indenture (as defined in the Non-Released Multi Lien Intercreditor Agreement) and/or the 2025 E.U. Notes Indenture (as defined in the Non-Released Multi Lien Intercreditor Agreement), as applicable, shall be deemed to be the judgment of the Administrative Agent (acting at the direction of the Required Lenders) in respect of such matters under this Agreement and the Security Documents.
(p)Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the Administrative Agent on the Shared Collateral (as defined in that certain Non- Released Multi Lien Intercreditor Agreement, dated as of the Twelfth Amendment Effective Date, by and among, inter alios, the 2025 Credit Agreement Collateral Agent, the Superpriority Credit Agreement Collateral Agent, the 2025 U.S. Notes Collateral Agent, the 2025 E.U Notes Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto (as may be amended, restated, supplemented or replaced, in whole or in part, from time to time, the “Non-Released Multi Lien Intercreditor Agreement”)) and the Common Collateral (as defined in the New ABL Intercreditor Agreement), respectively, are expressly subject and subordinate to the liens and security interests granted in favor of the First Priority Secured Parties (as defined in the Non- Released Multi Lien Intercreditor Agreement) and the Senior Secured Parties (as defined in the New ABL Intercreditor Agreement), respectively, and (ii) the exercise of any right or remedy by the Administrative Agent or any other party hereunder in respect of such Shared Collateral and/or such Common Collateral, as the case may be, is subject to the limitations and provisions of the Non-Released Multi Lien Intercreditor Agreement and/or the New ABL Intercreditor Agreement,
as applicable. In the event of any conflict between the terms of the Non-Released Multi Lien Intercreditor Agreement and the terms of this Agreement, the terms of the Non-Released Multi Lien Intercreditor Agreement shall govern; provided that, notwithstanding the foregoing, in the event of any conflict between the provisions of this Agreement and the agreements in the New ABL Intercreditor Agreement among the holders of ABL Priority Obligations and Term Debt Obligations (each as defined in the New ABL Intercreditor Agreement), the provisions of the New ABL Intercreditor Agreement shall govern.
The agreements in this Article XI shall survive the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
Exhibit 10.4
CUSIP: D3130AAA8 ISIN: XAD3130AAA88
DIEBOLD NIXDORF, INCORPORATED DIEBOLD NIXDORF HOLDING GERMANY GMBH
CREDIT AGREEMENT
dated as of December 29, 2022
GLAS USA LLC,
as Administrative Agent
GLAS AMERICAS LLC,
as Collateral Agent and
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK, N.A.,
as Lead Bookrunner and Lead Arranger
TABLE OF CONTENTS
Page
EXHIBITS
EXHIBIT A ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT B [RESERVED]
EXHIBIT C NOTE
EXHIBIT D TAX CERTIFICATE EXHIBIT E SOLVENCY CERTIFICATE
EXHIBIT F COMPLIANCE CERTIFICATE EXHIBIT G SUBORDINATION AGREEMENT
SCHEDULES
SCHEDULE 1.1(a) COMMITMENTS
SCHEDULE 1.1(b) FOREIGN COLLATERAL AGREEMENTS SCHEDULE 5.7 LITIGATION AND GUARANTEE OBLIGATIONS SCHEDULE 5.8 SUBSIDIARIES
SCHEDULE 5.17 INTELLECTUAL PROPERTY
SCHEDULE 6.15 INVESTMENTS
SCHEDULE 6.16 LIENS
SCHEDULE 6.18 INDEBTEDNESS
SCHEDULE 6.32 POST-CLOSING OBLIGATIONS ANNEXES
ANNEX I AGREED SECURITY PRINCIPLES
v
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this “Agreement”), dated as of December 29, 2022, is among DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Company”), DIEBOLD NIXDORF HOLDING GERMANY GMBH (the “Borrower”), the Lenders from time to time parties hereto (as defined below), GLAS USA LLC, as administrative agent (the “Administrative Agent”) and GLAS AMERICAS LLC, as collateral agent (the “Collateral Agent”).
The parties hereto agree as follows:
ARTICLE I DEFINITIONS
1.16.Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
“2024 Consent Solicitation and Exchange Offer” has the meaning assigned to such term in the Transaction Support Agreement.
“2024 Notes” means the Company’s 8.5% Senior Notes due 2024 issued pursuant to the 2024 Notes Indenture.
“2024 Notes Indenture” means that certain indenture, dated as of April 19, 2016, among the Company, as issuer, the subsidiary guarantors party thereto from time to time, and the 2024 Trustee, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Company’s 8.5% Senior Notes due 2024.
“2024 Trustee” means U.S. Bank Trust Company, National Association.
“2025 Consent Solicitation” has the meaning assigned to such term in the Transaction Support Agreement.
“2025 Euro Notes” means the Dutch Issuer’s 9.000% Senior Secured Notes due 2025 issued pursuant to the 2025 Euro Notes Indenture.
“2025 Euro Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Euro Notes Indenture, or any successor representative acting in such capacity.
“2025 Euro Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Dutch Issuer, as issuer, the Company, as guarantor, the subsidiary guarantors from time to time, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, the 2025 Euro Notes Trustee and the 2025 Euro Notes Collateral Agent, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Dutch Issuer’s 9.000% Notes due 2025.
“2025 Euro Notes Trustee” means U.S. Bank Trust Company, National Association until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 Euro Notes Indenture and thereafter means the successor serving thereunder.
“2025 Notes” means the 2025 U.S. Notes and the 2025 Euro Notes.
“2025 Notes Collateral Agents” means the 2025 U.S. Notes Collateral Agent and the 2025 Euro Notes Collateral Agent.
“2025 Notes Indentures” means the 2025 U.S. Notes Indenture and the 2025 Euro Notes Indenture. “2025 Notes Trustees” means the 2025 U.S. Notes Trustee and the 2025 Euro Notes Trustee.
“2025 U.S. Notes” means the Company’s 9.375% Senior Secured Notes due 2025 issued pursuant to the 2025 U.S.
Notes Indenture.
“2025 U.S. Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025
U.S. Notes Indenture, or any successor representative acting in such capacity.
“2025 U.S. Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Company, as issuer, the subsidiary guarantors from time to time, the 2025 U.S. Notes Trustee and the 2025 U.S. Notes Collateral Agent, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Company’s 9.375% Notes due 2025.
“2025 U.S. Notes Trustee” means U.S. Bank Trust Company, National Association until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 U.S. Notes Indenture and thereafter means the successor serving thereunder.
“ABL Collateral Agent” means (a) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party other than an ABL Loan Party incorporated under the laws of a Specified Foreign Jurisdiction (other than
Canada), JPMorgan Chase Bank, N.A. (together with its successors and assigns), as collateral agent for the ABL Secured Parties and (b) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party incorporated under the laws of a Specified Foreign Jurisdiction (other than Canada), GLAS Americas LLC (together with its successors and assigns) as collateral agent for the ABL Secured Parties.
“ABL Facility” shall mean the asset-based revolving credit agreement, dated as of the Closing Date, among the Company, the guarantors party thereto, the lenders party thereto, the ABL Facility Administrative Agent and the ABL Collateral Agent, as amended, restated, amended and restated, supplemented, modified, substituted, replaced or refinanced, in whole or in part, from time to time in accordance with the terms hereof and the ABL Intercreditor Agreement (whether with the original administrative agent and lenders or other agents and lenders or otherwise and whether provided under the original ABL Facility or another credit agreement, indenture, instrument, other document or otherwise, unless such credit agreement, indenture, instrument or document expressly provides that it is not an ABL Facility).
“ABL Facility Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as the administrative agent under the ABL Facility, or any successor representative acting in such capacity.
“ABL Facility Documentation” shall mean the ABL Facility and the other “Credit Documents” (as defined in the ABL Facility) (as in effect on the date hereof and as amended or modified from time to time in accordance with the terms hereof and the ABL Intercreditor Agreement).
“ABL Intercreditor Agreement” means that certain ABL Intercreditor Agreement, dated as of the Closing Date, by and among the ABL Collateral Agent, the ABL Facility Administrative Agent, the Administrative Agent, the Collateral Agent, the New 2L Notes Collateral Agent, the New 2L Notes Trustee, the New Term Loan Facility Collateral Agent, New Term Loan Facility Administrative Agent, the 2025 Euro Notes Collateral Agent, the 2025 Euro Notes Trustee, the 2025 U.S. Notes Collateral Agent, the 2025 U.S. Notes Trustee, the Existing Term Loan Facility Collateral Agent, the Existing Term Loan Facility Administrative Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“ABL Loan Parties” means the “Credit Parties” as defined in the ABL Facility.
“ABL Priority Collateral” means “ABL Priority Collateral” as defined in the ABL Intercreditor Agreement. “ABL Secured Parties” means the “Secured Parties” as defined in the ABL Facility.
“Accepting Lenders” has the meaning set forth in Section 2.22.1. “Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Company or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of any Person, business line or division thereof, whether through purchase of assets, merger, amalgamation or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Voting Stock of any Person or, with respect to any non-wholly owned Subsidiary, additional Voting Stock thereof.
“Additional Agreement” has the meaning set forth in Section 11.9(e).
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means, for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” means GLAS USA LLC in its capacity as contractual representative of the Lenders appointed pursuant to Article XI, and not in its individual capacity, and any successor Administrative Agent appointed pursuant to Article XI. “Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by or otherwise acceptable to the Administrative Agent.
“Advance” means a borrowing hereunder (or conversion or continuation thereof) consisting of the aggregate amount of the several Loans of the same Type, Class and, in the case of Term Benchmark Loans, for the same Interest Period, made by the Lenders on the same Borrowing Date (or converted or continued by the Lenders on the same date of conversion or continuation).
“Affected Class” has the meaning set forth in Section 2.22.1. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common
control with such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of Capital Stock, by contract or otherwise (including (without limitation) the controlled Person being a dependent entity (abhängiges Unternehmen) of the controlling Person within the meaning of section 17 AktG or being a subsidiary (Tochterunternehmen) within the meaning of section 290 HGB of such Person).
“Agents” means, collectively, the Administrative Agent and the Collateral Agent. “Agreed Security Principles” has the meaning set forth on Annex I.
“Aggregate Commitments” means the aggregate amount of the Commitments of all Lenders.
“Aggregate Outstandings” means as at any date of determination with respect to any Lender, the sum of the aggregate unpaid principal amount of such Lender’s Loans on such date.
“Agreement” is defined in the recitals hereto. “Agreement Currency” is defined in Section 16.6. “All-in Yield” means the yield of the applicable Indebtedness, whether in the form of interest rate, margin, commitment or ticking fees, original issue discount, upfront fees, index floors or otherwise, in each case payable generally to lenders, provided that original issue discount and upfront fees shall be equated to interest rate assuming a four-year life to maturity, and shall not include arrangement fees, structuring fees or other fees not paid to the applicable lenders generally.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. New York time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.20 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.20(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 5.00%, such rate shall be deemed to be 5.00% for purposes of this Agreement.
“Amendments” has the meaning assigned to such term in the Transaction Support Agreement.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Loan Parties or their Subsidiaries from time to time primarily or in any material manner concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada) and the United Kingdom Bribery Act of 2010.
“Applicable Margin” means (i) 5.40% in the case of Floating Rate Loans and (ii) 6.40% in the case of Term Benchmark Loans.
“Approved Fund” has the meaning assigned to such term in Section 13.1. “Arranger” means JPMorgan Chase Bank, N.A., in its capacity as lead arranger and bookrunner. “Article” means an article of this Agreement unless another document is specifically referenced.
“Asset Sale Prepayment Event” means any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by Section 6.14 other than clauses (vi) and (xvi)) that yields gross proceeds to the Company or any Subsidiary (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $5,000,000, provided that all such Dispositions excluded under such de-minimis exception (including any Recovery Events excluded pursuant to the definition thereof) shall not exceed $15,000,000 in any fiscal year of the Company. “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 13.1), and accepted by the Administrative Agent, substantially in the form of Exhibit A attached hereto or any other form approved by the Administrative Agent. “Authorized Officer” means, with respect to the Borrower, any director or any other Person designated by any of the foregoing in writing to the Administrative Agent from time to time to act on behalf of the Borrower (or, if so designated, a specific Borrower) which designation has not been rescinded in writing, in each case acting singly, provided that two Authorized Officers shall be required to modify the wiring instructions for any Advance.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.20.
“BaFin” means the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Event” means, with respect to any Lender or a Parent of any Lender, such Lender or Parent becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, interim receiver, monitor, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of (x) any ownership interest, or the acquisition of any ownership interest, in such Lender or Parent by a Governmental Authority or instrumentality thereof or (y) in the case of a solvent Lender and Parent, the precautionary appointment of an administrator, guardian or custodian or similar official by a Governmental Authority under or based on the law of the country where such Lender or Parent is organized if the applicable law of such jurisdiction requires that such appointment not be publicly disclosed; provided, further, that such ownership interest or appointment does not result in or provide such Lender or Parent with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender or Parent (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender or Parent.
“Belgian Collateral Agreements” means the collateral agreements governed by Belgian law set forth on Schedule 1.1(b)
hereof.
“Belgian Collateral Documents” means the Belgian Collateral Agreements and each security agreement or other
instrument or document, as applicable, governed by Belgian law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Belgian Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Belgian Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Belgium. “Benchmark” means, initially, the Term SOFR Rate; provided that if a Benchmark Transition Event, and the related
Benchmark Replacement Date have occurred with respect to the Term SOFR Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.20.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
(1)the Adjusted Daily Simple SOFR;
(2)the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for dollar- denominated syndicated credit facilities at such time in the United States and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be equal to the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted
Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for dollar-denominated syndicated credit facilities at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1)in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2)in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of
such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20.
“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 and subject to 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.”
“Bi-lateral LC/WC Agreement” means an agreement between the Company and/or any of its Subsidiaries and a financial institution providing for the issuance of letters of credit, bank guarantees and/or similar obligations which agreement has been designated in writing as a Bi-lateral LC/WC Agreement by the Company to the Administrative Agent, which designation shall include a certification as to the maximum principal exposure amount permitted under such agreement. For the avoidance of doubt the Company may rescind such designation (or deliver a certificate certifying as to a modified amount of such maximum exposure amount that shall constitute Obligations) by written notice to the Administrative Agent.
“Board of Directors” means: (a) with respect to a corporation, the board of directors of the corporation or such directors or committee serving a similar function (including (but not limited to) the “Vorstand” of a German stock corporation); (b) with respect to a limited liability company, the board of managers of the company or such managers or committee serving a similar function (including (but not limited to) the “Geschäftsführung” of a German limited liability company); (c) with respect to a partnership, the Board of Directors of the general partner of the partnership (including (but not limited to) the “Komplementär” of a German partnership); and (d) with respect to any other Person, the managers, directors, trustees, board or committee of such Person or its owners serving a similar function.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Blocking Regulation” means Council Regulation (EC) 2271/96. “Borrower” is defined in the preamble hereto.
“Borrowing Date” means any Business Day specified in a notice pursuant to Section 2.3 as a date on which the Borrower requests the Lenders to make Loans hereunder. “Borrowing Notice” is defined in Section 2.3. “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed. Notwithstanding the foregoing, when the term “Business Day” is used
(a) in relation to Loans referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the Adjusted Term SOFR Rate, any such day that is only a U.S. Government Securities Business Day, or (b) in any Foreign Loan Document or in relation to the performance of any obligation under the Loan Documents by any Foreign Loan Party that is a party, the “Business Day” means any day other than a day on which commercial banks in the applicable jurisdiction are authorized or required by law to remain closed.
“Canadian Collateral Agreement” means, collectively, the Canadian security agreement among the Loan Parties party thereto and the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent (acting at the direction of the Required Lenders), and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Canadian law in connection with this Agreement and the Canadian Collateral and Guarantee Requirement to secure any of the Obligations.
“Canadian Collateral and Guarantee Requirement” means, at any time and solely with respect to each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Administrative Agent and the Collateral Agent shall have received from (i) each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Foreign Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Foreign Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, (ii) each
Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Closing Date, documents and, to the extent reasonably requested by the Administrative Agent or the Collateral Agent (each acting at the direction of the Required Lenders), opinions, documents and certificates of the type referred to in Section 4.1;
(b)all outstanding Equity Interests of any Subsidiary of the Company (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Canadian Loan Party shall have been pledged pursuant to the Canadian Collateral Agreement and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Canadian Loan Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Canadian Collateral Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including PPSA financing statements, Control Agreements and intellectual property security agreements, required by the Canadian Collateral Agreement or Requirements of Law and reasonably requested by the Administrative Agent, acting at the direction of the Required Lenders, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Canadian Collateral Agreement and perfect such Liens to the extent required by, and with the priority required by, the Canadian Collateral Agreement and the other provisions of the term “Canadian Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording;
(e)the Collateral Agent shall have received as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree)
(i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Collateral Agent, acting at the direction of the Required Lenders) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Collateral Agent, acting at the direction of the Required Lenders, issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.16, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Administrative Agent, acting at the direction of the Required Lenders, may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer) and (vi) such legal opinions as the Administrative Agent or Collateral Agent, acting at the direction of the Required Lenders, may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Canadian Loan Party on the Closing Date, each Canadian Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), (ii) with respect to any Required Account established by a Canadian Loan Party after the Closing Date, each Canadian Loan Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), and (iii) with respect to any Required Account
acquired by a Canadian Loan Party after the Closing Date, each Canadian Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Administrative Agent, acting at the direction of the Required Lenders. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account maintained by a Canadian Loan Party so long as such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Canadian Loan Parties, or the provision of Guarantees by any Canadian Subsidiary (i) if, and for so long as and to the extent that the Administrative Agent, acting at the direction of the Required Lenders, and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other Taxes)), outweighs the benefits to be obtained by the Lenders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the PPSA or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral of the Canadian Loan Parties shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the PPSA or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Canadian Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Canadian Collateral Agreement, (c) except with respect to any Required Accounts, in no event shall Control Agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of PPSA financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 other than the filing of PPSA financing statements and, other than the filing of PPSA financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Loan Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. or Canadian jurisdiction or required by the laws of any non-U.S. or Canadian jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States or Canada (including any Equity Interests of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets, (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of PPSA financing statements), (h) no Loan Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Assets. The Administrative Agent, acting at the direction of the Required Lenders, may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, New Term Loans, Existing Term Loan Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Canadian Defined Benefit Plan” means a pension plan for the purposes of any applicable pension benefits standards statute or regulation in Canada, which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada).
“Canadian Loan Party” means any Loan Party incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof.
“Canadian Pension Event” means (a) the whole or partial withdrawal of a Canadian Loan Party or another Loan Party from a Canadian Defined Benefit Plan during a plan year; or (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan or the treatment of a Canadian Defined Benefit Plan amendment as a termination or partial termination; or (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee
appointed to administer a Canadian Defined Benefit Plan; (d) any statutory deemed trust or Lien, other than a Permitted Encumbrance, arises in connection with a Canadian Defined Benefit Plan, or (e) any other event or condition which might constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of trustee to administer, any Canadian Defined Benefit Plan.
“Canadian Pension Plan” means a pension plan that is covered by the applicable pension standards laws of any jurisdiction in Canada including the Pension Benefits Act (Ontario) and the Income Tax Act (Canada) and that is either
(a) maintained or sponsored by a Loan Party for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which the Loan Party is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions, but “Canadian Pension Plan” shall not include the Canada Pension Plan (CPP) as maintained by the Government of Canada or the Quebec Pension Plan (QPP) as maintained by the Government of Quebec or the Ontario Retirement Pension Plan.
“Canadian Subsidiary” means each Subsidiary incorporated, formed or organized, under the laws of Canada or a province or territory thereof.
“Capital Stock” means (i) in the case of any corporation, all capital stock and any securities exchangeable for or convertible into capital stock and any warrants, rights or other options to purchase or otherwise acquire capital stock or such securities or any other form of equity securities, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Cash Equivalents” means (i) Dollars, Canadian Dollars, Swiss Francs, Pounds Sterling, Japanese Yen, Euros, any national currency of any participating member state of the EMU; (ii) securities issued directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof), (iii) Dollar denominated time deposits, certificates of deposit, demand deposits, overnight bank deposits and bankers’ acceptances of any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks (any such bank, an “Approved Lender”), (iv) commercial paper issued by any Lender or Approved Lender or by the parent company of any Lender or Approved Lender, commercial paper with a short-term commercial paper rating of at least investment grade or the equivalent thereof, marketable short-term money market and similar funds of at least investment grade or the equivalent thereof, (v) investment grade bonds and preferred stock of investment grade companies, including but not limited to municipal bonds, corporate bonds, treasury bonds, etc., (vi) readily marketable direct obligations issued by (x) any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof or
(y) any foreign government or any political subdivision or public instrumentality, in each case of at least investment grade or the equivalent thereof, (vii) foreign Investments that are of similar type of, and that have a rating comparable to, any of the Investments referred to in the preceding clauses (i) through (vi) above, (viii) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (i) through (vii) above and (ix) other securities and financial instruments which offer a security comparable to those listed above.
“Centre of Main Interests” means the centre of main interests within the meaning and for the purposes of the Insolvency Regulation and, in relation to any English Loan Party, the Retained Insolvency Regulation.
“Change in Law” means the occurrence, after the date of this Agreement of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means (i) any Person, including a “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) which includes such Person, other than the Consenting Party Group, shall purchase or otherwise acquire, directly or indirectly, beneficial ownership of Voting Stock of the Company and, as a result of such purchase or acquisition, any such Person (together with its Affiliates), shall directly or indirectly beneficially own in the aggregate Voting Stock representing more than 30% of the combined voting power of the Company’s Voting Stock; (ii) the Company shall cease to directly (or indirectly through one or more other Loan Parties each of which shall have satisfied the Collateral and Guarantee Requirement applicable to it) own 100% of the Voting Stock of the Borrower or (iii) any event or circumstance which causes a “ change of control” (as such term (or any reasonably synonymous term) is defined under any of the ABL Facility, the New Term Loan Facility, the Existing Term Loan Facility, the 2025 Notes Indentures, the 2024 Notes
Indenture or the New 2L Notes Indenture (or under any documents governing any Indebtedness with aggregate principal amount in excess of $50,000,000 that has refinanced any of the foregoing)).
“Charges” is defined in Section 10.12. “Class”, when used in reference to any Loan or Commitment, refers to whether such Loan is, as the context requires, a Term Loan or an extended Term Loan, and when used in reference to a Commitment, refers to whether such Commitment is a Commitment, or an extended Term Loan Commitment. For the avoidance of doubt, each extended Term Loan is of a different Class than the Class or Classes of Term Loan from which it was converted.
“Closing Date” means the first date on which all conditions precedent set forth in Section 4.1 are satisfied or waived in accordance with Section 8.2. “CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. “Collateral” means, collectively, all of the assets and property (including Capital Stock) and interests therein and
proceeds thereof, whether now owned or hereafter acquired, in or upon which a Lien is granted pursuant to any of the Security
Documents as security for the Obligations, as applicable, but shall in all events with respect to Loan Parties organized or incorporated outside the United States (or any state or territory thereof), other than the Canadian Loan Parties, be limited by and subject in all respects to the Agreed Security Principles and exclude all Foreign Excluded Assets.
“Collateral Agent” means GLAS Americas LLC in its capacity as collateral agent appointed pursuant to Article XI and not in its individual capacity, and any successor Collateral Agent appointed pursuant to Article XI. “Collateral and Guarantee Requirements” means, at any time, collectively, the Domestic Collateral and Guarantee Requirement, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
“Commitments” means, with respect to each Term Lender, the commitment, if any, of such Term Lender to make Term Loans hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Term Loans to be made by such Term Lender hereunder, as such commitment may be reduced or increased from time to time pursuant to Sections 2.4, 13.1 or any other applicable provisions hereof. The initial amount of each Lender’s Commitment is set forth on Schedule 1.1(a) or, otherwise, in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as the case may be. “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.
“Company” is defined in the preamble hereto. “Compliance Certificate” is defined in Section 6.1(iv). “Condemnation” is defined in Section 7.77.8. “Consenting Party Group” means a “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) comprised of the Consenting Parties (as defined in the Transaction Support Agreement); provided that no individual Consenting Party shall own, purchase or otherwise acquire, directly or indirectly, beneficial ownership of Voting Stock of the Company resulting in such Consenting Party (together with its Affiliates), directly or indirectly beneficially owning in the aggregate Voting Stock representing more than 30% of the combined voting power of the Company’s Voting Stock owned by the Consenting Party Group. For the avoidance of doubt, there shall be only one Consenting Party Group.
“Consolidated Net Income” means as of any period, the consolidated net income (or loss) of the Company and its Subsidiaries for such period determined in conformity with GAAP.
“Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004 (UK).
“Control Agreement” means an agreement, in form and substance reasonably satisfactory to the Required Lenders (and, in the case of protections for the benefit of the Collateral Agent or obligations of the Collateral Agent, the Collateral Agent) (acting at the direction of the Required Lenders), which provides for the Collateral Agent to have control (including “control” as defined in Section 9-104 of the UCC or Section 8-106 of the UCC, as applicable) of “deposit accounts” (as defined in the UCC or the Canadian Collateral Agreement, as applicable) or “securities accounts” (as defined in the UCC or PPSA), as applicable.
“Controlled Group” means all members of a controlled group of corporations, within the meaning of Section 414(b) of the Code, of which the Company is a member, all trades or businesses (whether or not incorporated) that are under common control, within the meaning of Section 414(c) of the Code, with the Company or, for purposes of provisions relating to
Section 412 of the Code or Section 302 of ERISA, all members of an affiliated service group, within the meaning of Section 414(m) or (o) of the Code, of which the Company is a member.
“Conversion/Continuation Notice” is defined in Section 2.7. “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Covered Party” has the meaning assigned to it in Section 17.3.
“Credit Facilities” means the Commitments and the extensions of credit made thereunder.
“DAC6” means the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a
U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
“Debtor Relief Law” means, collectively, the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement involving a compromise of claims of its creditors), the German insolvency code (Insolvenzordnung), in the case of a Belgian Loan Party, Book XX (Insolventie van ondernemingen/Insolvabilité des entreprises) of the Belgian Code of Economic Law, and all other liquidation, compromise, conservatorship, administration, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada, Germany, France, Belgium or other applicable jurisdictions from time to time in effect (including any applicable companies or corporations legislation to the extent the relief sought under such companies or corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt).
“Default” means an event described in Article VII. “Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) [reserved] or (iii) pay over to any Secured Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Secured Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Secured Party’s receipt of such certification in form and substance reasonably satisfactory to it and the Administrative Agent, (d) has become the subject of a Bankruptcy Event or (e) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“Designated Financial Officer” means, with respect to the Company, its chief financial officer, director of treasury services, treasurer, assistant treasurer, or any position similar to any of the foregoing.
“Designated Lender” means Bank of America, N.A.; provided if Bank of America, N.A. ceases to be a Lender, there shall be no Designated Lender.
“Disposition” means with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Equity Interests” means any Equity Interest that by its terms (or by the terms of any security or other Equity Interest 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 Capital Stock of such Person that does not constitute Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (b) is redeemable (other than solely for Capital Stock of such Person that does not constitute Disqualified Equity Interests) at the option of the holder thereof, in whole or in part,
(c) provides for scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interest (other than solely for Capital Stock of such Person that does not constitute Disqualified Equity Interests) that would constitute Disqualified Equity Interests, in each case, on or prior to the 91st day following the Latest Maturity Date; provided that (i) any Equity Interests that would constitute Disqualified Equity Interests solely because the holders thereof have the right to require the Company to repurchase such Disqualified Equity Interests upon the occurrence of a change of control or asset sale shall not constitute Disqualified Equity Interests if the terms of such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) provide that the Company may not repurchase or redeem any such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) pursuant to such provision unless the Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) are fully satisfied prior thereto or simultaneously therewith and (ii) only the portion of the Equity Interests meeting one of the foregoing clauses (a) through (d) prior to the date that is ninety-one (91) days after the Latest Maturity Date will be deemed to be Disqualified Equity Interests. Notwithstanding the preceding sentence, (A) if such Equity Interest is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Company or any Subsidiary, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Equity Interest held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Company (or any Subsidiary) shall be considered Disqualified Equity Interests because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified Lender” means (a) banks, financial institutions and other institutional lenders separately identified in writing by the Company to the Administrative Agent prior to the Closing Date, (b) any competitors of the Company or its Subsidiaries that were separately identified in writing by the Company to the Administrative Agent from time to time on three (3) Business Days’ prior written notice, and (c) in the case of each of the entities covered by clauses (a) and (b), any of their Affiliates (other than bona fide debt funds) that are either (i) identified in writing by the Company to the Administrative Agent from time to time or (ii) clearly identifiable solely on the basis of the similarity of such Affiliate’s name to an entity set forth on the Disqualified Lender list pursuant to clauses (a) and (b). In no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee is a Disqualified Lender or have any liability with respect to any assignment made to a Disqualified Lender. There shall be no retroactive disqualification of an entity that has (i) acquired an assignment or participation interest, (ii) entered into a trade for either of the foregoing or (iii) become a competitor of the Company or its Subsidiaries, in each case, before such entity is added to the Disqualified Lender list. The Administrative Agent may post the Disqualified Lender list to its agency intralinks or similar site, for access by all Lenders (private and public). Any updates to the Disqualified Lender list shall not become effective until 3 Business Days after receipt of such update by the Administrative Agent or the end of such lesser time period, if any, as is acceptable to the Administrative Agent (acting at the direction of the Required Lenders).
“Dollar Equivalent Amount” of any currency at any date shall mean (i) the amount of such currency if such currency is in Dollars or (ii) the Equivalent Amount of Dollars if such currency is any currency other than Dollars as determined pursuant to Section 1.5. “Dollars”, “U.S. Dollars” and “$” means lawful currency of the United States of America.
“Domestic Collateral and Guarantee Requirement” means, at any time and solely with respect to each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Administrative Agent and the Collateral Agent shall have received from (i) each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Domestic Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Domestic Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, (ii) each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Security Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and
(iii) each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a
counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Closing Date, documents and, to the extent reasonably requested by the Administrative Agent or the Collateral Agent (each acting at the direction of the Required Lenders), opinions, documents and certificates of the type referred to in Section 4.1;
(b)all outstanding Equity Interests of the Company and the Subsidiaries (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Domestic Loan Party shall have been pledged pursuant to the Security Agreement and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Domestic Loan Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Security Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, Control Agreements and intellectual property security agreements, required by the Security Documents or Requirements of Law and reasonably requested by the Administrative Agent, acting at the direction of the Required Lenders, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents and the other provisions of the term “Domestic Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording;
(e)the Collateral Agent shall have received as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree)
(i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Collateral Agent, acting at the direction of the Required Lenders) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Collateral Agent, acting at the direction of the Required Lenders, issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.16, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Collateral Agent, acting at the direction of the Required Lenders, may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vi) completed “Life-of-Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto), (vii) if any Mortgaged Property is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors and the other Flood Insurance Regulations and as required under Section 6.9, and (viii) such legal opinions as the Administrative Agent or the Collateral Agent, acting at the direction of the Required Lenders may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Domestic Loan Party on the Closing Date, each Domestic Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), (ii) with respect to any Required Account established by a Domestic Loan Party after the Closing Date, each Domestic Loan Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), and (iii) with respect to any Required Account
acquired by a Domestic Loan Party after the Closing Date, each Domestic Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Administrative Agent at the direction of the Required Lenders. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account so long as such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary (i) if, and for so long as and to the extent that the Administrative Agent, acting at the direction of the Required Lenders, and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other Taxes)), outweighs the benefits to be obtained by the Lenders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or
(C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Domestic Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents, (c) except with respect to any Required Accounts, in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 and, other than the filing of UCC financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Loan Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that except as set forth in the Foreign Loan Documents or as expressly required by the Agreed Security Principles, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) no Loan Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Assets. The Administrative Agent, acting at the direction of the Required Lenders, may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, New Term Loans, Existing Term Loan Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Domestic Guarantee Agreement” means the Domestic Guarantee Agreement, dated as of the Closing Date and as further supplemented or modified from time to time, among the Domestic Loan Parties and the Administrative Agent, in form and substance acceptable to the Administrative Agent and the Required Lenders.
“Domestic Loan Party” means a Loan Party that is not a Foreign Subsidiary.
“Domestic Subsidiary” means each present and future Subsidiary of the Company that is not a Foreign Subsidiary. “Dutch Collateral Agreements” means the collateral agreements governed by Dutch law set forth on Schedule 1.1(b)
hereof, each dated as of the Closing Date between each Loan Party from time to time party thereto and the Collateral Agent.
“Dutch Collateral Documents” means each of the Dutch Collateral Agreements, and each other security agreement, pledge, mortgage or other instrument or document, as applicable, governed by Dutch law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Dutch Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Dutch Issuer” means Diebold Nixdorf Dutch Holding B.V.
“Dutch Loan Party” means any Loan Party incorporated or otherwise organized under the laws of the Netherlands. “EBIT” means, for any period, the sum of:
(a)the Consolidated Net Income of the Company and its Subsidiaries for such period determined in conformity with GAAP
plus, each of the following to the extent not duplicative of amounts included in determining Consolidated Net Income:
(b)Taxes based on income, profits or capital for such period, including, without limitation, state franchise and similar Taxes and foreign withholding Taxes, and Interest Expense (without, however, giving effect to the proviso to the definition thereof), and any extraordinary or non-recurring losses and charges and any non-cash losses and non-cash charges and related tax effects in accordance with GAAP; plus
(c)[reserved]; plus
(d)(i) fees, costs and expenses incurred in connection with Acquisitions, (ii) non-recurring costs, charges and expenses relating to (x) the exercise of options and (y) stock issued by the target of an Acquisition, (iii) any fees, costs, expenses or charges related to any equity offering, Acquisition, Disposition or other Investment permitted hereunder, recapitalization or incurrence or amendments of Indebtedness permitted to be made under (or related to any refinancing hereof or amendment hereto) this Agreement (whether or not successful) and (iv) any costs or expenses incurred by the Company or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or Net Cash Proceeds of an issuance of Equity Interests of the Company; plus
(e)any loss realized as a result of the cumulative effect of a change in accounting principles; plus
(f)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Acquisition, Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); plus
(g)[reserved]; plus
(h)synergies and cost-savings of the Company and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives (“Synergies”) and non-recurring costs, charges, accruals, reserves or expenses of the Company and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Acquisition, any Disposition by the Company or its Subsidiaries outside the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring initiatives enacted after the date hereof (it being understood any such increases pursuant to this clause (h) related to an Acquisition or Disposition shall only be available subject to the consummation of the Acquisition or Disposition and not in contemplation thereof), in each case, that are set forth in a certificate of a Designated Financial Officer of the Company and that are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Company in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Acquisition or Disposition or the decision implement such restructuring initiative (calculated on a Pro Forma Basis and net of the amount of actual benefits realized during such period from such actions to the extent already included in consolidated net income for such period); provided that the aggregate amount added back in reliance on this clause (h) in any four-fiscal quarter period shall not exceed 10% of EBITDA for such four-fiscal quarter period (calculated before giving effect to any addbacks and adjustments in this clause (h));
minus, each of the following to the extent included in determining Consolidated Net Income (without duplication):
(j)the income (or loss) of any Person (other than a Subsidiary of the Company) in which any Person other than the Company or any of its Subsidiaries has a joint interest or a partnership interest or other ownership interest, except to the extent that any such income is actually paid to or otherwise received in cash by the Company or any of its Subsidiaries during such period, (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the
Company or is merged into or amalgamated or consolidated with the Company or any of its Subsidiaries or that Person’s assets are acquired by the Company or any of its Subsidiaries, except as provided in the definitions of “EBIT” and “Pro Forma Basis” herein, (iii) [reserved]; (iv) gains (or losses) from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of business of the Company and its Subsidiaries, and related tax effects in accordance with GAAP, (v) any other extraordinary or non-recurring gains or other income not from the continuing operations of the Company or its Subsidiaries, any non-cash gains for such period, and in each case, related tax effects in accordance with GAAP and (vi) the income of any Subsidiary of the Company (other than Subsidiaries which are not material in the aggregate as agreed upon between the Company and the Required Lenders) to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary; minus
(k)[reserved]; minus
(l)without duplication, the aggregate amount of cash payments made during such period in respect of any non- cash accrual, reserve or other non-cash charge or expense accounted for in a prior period which were added to Consolidated Net Income to determine EBIT for such prior period and which do not otherwise reduce Consolidated Net Income for the current period; minus
(m)any gain realized as a result of the cumulative effect of a change in accounting principles. For the avoidance of doubt, the foregoing shall be calculated as set forth in Section 1.2. “EBITDA” means, for any period, the sum of (a) EBIT for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period, all amounts attributable to depreciation expense and amortization expense (including amortization of intangibles, deferred financing fees and actuarial gains and losses related to pensions and other post-employment benefits, but excluding amortization of prepaid cash expenses that were paid in a prior period), in each case, determined in accordance with GAAP.
“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 clauses (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.
“EMU” means the European Economic and Monetary Union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
“EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states of the European Union.
“English Collateral Agreements” means the collateral agreements governed by English law set forth on Schedule 1.1(b)
hereof.
“English Collateral Documents” means (a) the English Collateral Agreements and (b) each other security agreement,
charge, assignment by way of security, lien, pledge, debenture, hypothec, mortgage or other instrument or document, as applicable, governed by English law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each English Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“English Loan Party” means any Loan Party incorporated or otherwise organized under the laws of England and Wales. “Environmental Laws” means any and all applicable federal, state, provincial, territorial, municipal, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (a) pollution or the protection of the environment, (b) the effect of the environment or Hazardous Substances on human health and safety, (c) emissions, discharges or releases of Hazardous Substances into the environment, including surface water, ground water or land, or (d) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances or the clean-up, investigation or other remediation thereof.
“Environmental Liability” means any liability contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), resulting from or based upon (a) any Environmental Law, (b) any
Hazardous Substances, including exposure to or Releases of Hazardous Substances or (c) any contract, agreement or other legally binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of the capital stock, partnership interests, membership interest in a limited liability company, beneficial interests in a trust or other equity interests or any warrants, options or other rights to acquire such interests but excluding any debt securities convertible into such Equity Interests.
“Equivalent Amount” of any currency with respect to any amount of any other currency at any date means the equivalent in such currency of such amount of such other currency, calculated pursuant to Section 1.5. “ERISA” means the Employee Retirement Income Security Act of l974, as amended from time to time, and any rule or regulation issued thereunder.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Euro” or “€” means the single currency unit of the member states of the European Union that have the euro as its lawful currency in accordance with the EMU Legislation.
“Exchange Rate” means on any day the rate at which such other currency may be exchanged into U.S. Dollars at the time of determination on such day on the Bloomberg WCR Page for such currency. If such rate does not appear on any Bloomberg WCR Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent (at the direction of the Required Lenders) and the Company or, in the absence of such an agreement, the Administrative Agent, after consultation with the Company, may use any reasonable method it deems in good faith appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
“Excess Stub Notes” has the meaning assigned to such term in Section 6.32.
“Excluded Assets” means (i) any fee-owned real property located outside the United States having a fair market value equal to or less than $10,000,000, (ii) any fee-owned real property located in the United States having a fair market value equal to or less than $10,000,000, (iii) leasehold interests (it being understood that there shall be no requirement to obtain leasehold mortgages/deeds of trusts, landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents),
(iv) those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti-assignment provisions of the UCC, the PPSA or other applicable law), or to the extent that such security interests would result in material adverse tax consequences to the Company and its Subsidiaries, taken as a whole, as reasonably determined in good faith by the Company, (v) those assets as to which the Administrative Agent (acting at the direction of the Required Lenders) and the Company reasonably determine that the costs of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (vi) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (vii) to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Administrative Agent acting at the direction of the Required Lenders), equity interests in any person other than Wholly Owned Subsidiaries, (viii) margin stock, (ix) letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that Company and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below $2,000,000 (except to the extent perfection can be achieved by the filing of a UCC or PPSA financing statement), (x) any governmental licenses or state, provincial, territorial or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the UCC or PPSA and excluding the proceeds and receivables thereof), (xi) any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Company or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or PPSA), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or PPSA notwithstanding such prohibition, but in each case subject to the terms of the Collateral and Guarantee Requirements (other than to the extent no additional action needs to be taken with respect to any such assets to create or perfect a security interest in any such assets), (xii) the Specified Intercompany Claims and (xiii) any property excluded pursuant to the Agreed Security Principles. Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, any asset that does not constitute “Excluded Property” under and as defined in the 2025 Notes, New 2L Notes, New Term Loans, Existing Term Loan Facility and/or the ABL Facility shall not constitute an “Excluded Asset” for purposes of this Agreement and the other Loan Documents.
“Excluded Subsidiaries” means (i) any Foreign Subsidiary (other than a Specified Foreign Subsidiary), (ii) any Domestic Subsidiary of a Foreign Subsidiary (other than a Specified Foreign Subsidiary), (iii) any Domestic Subsidiary substantially all of the assets of which are Capital Stock or Indebtedness of Excluded Subsidiaries under clause (i), (iv) any other Subsidiary excused from becoming a Loan Party pursuant to clause (a) of the last paragraph of the definition of the term “Domestic Collateral and Guarantee Requirement” or of the term “Canadian Collateral and Guarantee Requirement” or the terms of the Agreed Security Principles, (v) any non-Wholly Owned Subsidiary to the extent the provision of a guarantee or granting of a Lien thereby is restricted or prohibited pursuant to applicable local law or contractual requirements and (vi) Immaterial Subsidiaries.
“Excluded Taxes” means, with respect to any payment made by any Withholding Agent under any Loan Document, 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) any Tax attributable to such Recipient’s failure to comply with Section 3.4(f)), (c) in the case of a Lender, any U.S. federal 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 (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 3.5(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (d) any withholding Taxes imposed by FATCA, (e) any Tax levied under the laws of the Netherlands to the extent such Tax becomes payable as a result of any Secured Party having a substantial interest (aanmerkelijk belang) in any Dutch Loan Party as laid down in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001), (f) any Taxes that is imposed in France on amounts paid by a Loan Party if such Taxes are imposed solely because this payment is made to (i) a Secured Party incorporated, domiciled, established or acting through a lending office situated in a Non-Cooperative Jurisdiction or (ii) an account opened in the name of or for the benefit of that Secured Party in a financial institution situated in a Non-Cooperative Jurisdiction or (g) any tax that arises due to the fact that the Loan is secured (directly or indirectly) by real estate located in Germany (inländische Grundstücke) or domestic rights treated as real property under German civil law (inländische Rechte, die den Vorschriften über Grundstücke unterliegen) within the meaning of section
49para. 1 no. 5 lit. c) aa) Income Tax Act (Einkommensteuergesetz) (including withholding taxes within the meaning of section
50para. 7 Income Tax Act (Einkommensteuergesetz)).
“Existing Term Loan Facility” means that certain credit agreement, dated as of November 23, 2015, among the Company, the guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders parties thereto from time to time, as amended on or about the Closing Date and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time.
“Existing Term Loan Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the Existing Term Loan Facility, or any successor representative acting in such capacity.
“Existing Term Loan Facility Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the Existing Term Loan Facility, or any successor representative acting in such capacity.
“Existing Term Loans” means the loans made to the Company pursuant to the Existing Term Loan Facility. “External Subsidiary” means a Subsidiary of the Company which is not a Loan Party.
“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 intergovernmental agreements entered into in connection therewith, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any current or future regulations or official interpretations of any of the foregoing.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of
America.
“Finance Lease Obligations” of a Person means the amount of the obligations of such Person to pay rent or other
amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are, in conformity with GAAP, accounted for as a finance lease (rather than an operating lease) on the balance sheet of that Person, and, for purposes hereof and subject to Section 1.2, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004 (UK).
“First Lien Pari Passu Intercreditor Agreement” means that certain First Lien Pari Passu Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, Collateral Agent, the New Term Loan Facility Collateral Agent, the New Term Loan Facility Administrative Agent, the 2025 Euro Notes Collateral Agent, the 2025 Euro Notes Trustee, the 2025
U.S. Notes Collateral Agent, the 2025 U.S. Notes Trustee, the Existing Term Loan Facility Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Floating Rate” means, for any day, a rate per annum equal to the sum of (a) the Applicable Margin plus (b) the Alternate Base Rate for such day, in each case changing when and as the Alternate Base Rate changes.
“Floating Rate Loan” or “Floating Rate Advance” means a Loan which bears interest at the Floating Rate.
“Flood Insurance Regulations” means (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973 and (c) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001 et seq.).
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate. For the avoidance of doubt the initial Floor for the Adjusted Term SOFR Rate shall be 4.00%.
“Foreign Excluded Assets” means any asset or undertaking not required to be charged or secured or not subject to any applicable Security Document pursuant to and in accordance with the terms of the Canadian Collateral and Guarantee Requirement and Agreed Security Principles, including, subject to Section 6.9(e), the Paderborn Property.
“Foreign Guarantee Agreement” means the Foreign Guarantee Agreement, dated as of the Closing Date and as further supplemented or modified from time to time, among the Foreign Loan Parties and the Administrative Agent in form and substance acceptable to the Administrative Agent and the Required Lenders.
“Foreign Intellectual Property” means any right, title or interest in or to any intellectual property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.
“Foreign Loan Documents” means the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents, the Foreign Guarantee Agreement and any other Loan Document which is not governed by the laws of the United States of America or any state or territory thereof.
“Foreign Loan Parties” means each Loan Party organized under the laws of a jurisdiction outside of the United States. “Foreign Plan” means each employee benefit plan (as defined under Section 3(3) of ERISA) that is not subject to the
laws of the United States and is maintained or contributed to by the Company or any Subsidiary or with respect to which the Company or any Subsidiary has any liability.
“Foreign Plan Event” means, with respect to any Foreign Plan, (A) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan; (B) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered; (C) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan; or (D) the imposition of any liability on account of the complete or partial termination of any Foreign Plan or the complete or partial withdrawal of any participating employer therein.
“Foreign Subsidiary” means each Subsidiary organized under the laws of a jurisdiction outside of the United States. “French Collateral Agreements” means the collateral agreements governed by French law set forth on Schedule 1.1(b)
hereof.
“French Collateral Documents” means the French Collateral Agreements and each security agreement, pledge,
mortgage, any type of security (sûreté réelle), transfer or assignment by way of security and fiducie-sûreté or other instrument or document, as applicable, governed by French law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each French Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“French Civil Code” means the French Code civil.
“French Commercial Code” means the French Code de commerce.
“French Loan Party” means Diebold Nixdorf, a French société par actions simplifiée, with a share capital of
€12,820,080.00, with its registered office at 3, rue Paul Dautier, 6, avenue Morane Saulnier, 78140 Vélizy-Villacoublay,
registered at the commercial registry of Versailles under number 410 383 533 R.C.S. Versailles, or any Loan Party incorporated or otherwise organized under the laws of France.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to
time.
“German Collateral Agreements” means the Collateral Agreements governed by German law set forth on Schedule
1.1(b) hereof.
“German Collateral Documents” means each of the German Collateral Agreements, and each other security agreement or other instrument or document, as applicable, governed by German law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each German Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“German Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Germany. “Governmental Authority” means any nation or government, any state, province, territory or other political subdivision
thereof and any entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government.
“Guarantee Obligation” means as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.
“Guarantor” means (a) with respect to the Obligations of the Borrower, the Company and each of its present and future Subsidiaries (other than the Borrower) executing a Guaranty as a guarantor at any time and (b) with respect to the Obligations of any Guarantor, the Company and each of its present and future Subsidiaries that executes a Guaranty as a guarantor at any time.
“Guaranty” means the Domestic Guarantee Agreement and the Foreign Guarantee Agreement, including any joinder, amendment, modification, renewal or replacement thereof.
“Hazardous Substances” means any material or substance: (1) which is or becomes defined as a hazardous substance, pollutant, or contaminant, pursuant to the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”) (42 USC §9601 et. seq.) as amended and regulations promulgated under it; (2) containing gasoline, oil, diesel fuel or other petroleum products; (3) which is or becomes defined as hazardous waste pursuant to the Resource Conservation and Recovery Act (“RCRA”) (42 USC §6901 et. seq.) as amended and regulations promulgated under it; (4) containing polychlorinated biphenyls (PCBs) or per- and polyfluoroalkyl substances; (5) containing asbestos; (6) which is radioactive; (7) the presence of which requires investigation or remediation under any Environmental Law or; (8) which is or becomes defined or identified as a hazardous waste, hazardous substance, hazardous or toxic chemical, pollutant, contaminant, or biologically hazardous substance under any Environmental Law.
“IFRS” means international accounting standards as promulgated by the International Accounting Standards Board. “Immaterial Subsidiary” means each Subsidiary of the Company now existing or hereafter acquired or formed and each
successor thereto, which accounts for not more than (a) 5.0% of the consolidated gross revenues (after intercompany
eliminations) of the Company and its Subsidiaries or (b) 5.0% of the Total Assets (after intercompany eliminations) of the Company and its Subsidiaries, in each case, as of the last day of the most recently completed fiscal quarter of the Company for which financial statements were delivered pursuant to Section 6.1(i) or (ii); provided that if the Subsidiaries that constitute Immaterial Subsidiaries pursuant to the preceding portion of this definition account for, in the aggregate, more than 10.0% of such consolidated gross revenues or more than 10.0% of the Total Assets, each as described in the preceding portion of this definition, then the term “Immaterial Subsidiary” shall not include each such Subsidiary (starting with the Subsidiary that
accounts for the most consolidated gross revenues or Total Assets and then in descending order) necessary to account for at least 90% of the consolidated gross revenues and 90% of the Total Assets, each as described in clause (a) above.
“Indebtedness” of a Person means, without duplication, such Person’s (a) obligations for borrowed money or similar obligations, (b) obligations representing the deferred purchase price of Property or services (other than accounts payable and/or accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case arising in the ordinary course of such Person’s business payable in accordance with customary practices), (c) obligations which are evidenced by notes, acceptances, or other instruments, to the extent of the amounts actually borrowed, due, payable or drawn, as the case may be,
(d) Finance Lease Obligations, (e) all reimbursement obligations in respect of Letters of Credit (other than commercial Letters of Credit referenced in clause (b), whether drawn or undrawn, contingent or otherwise, (f) any other obligation for borrowed money or similar financial accommodation which in accordance with GAAP would be shown as a liability on the consolidated balance sheet of such Person, (g) Off-Balance Sheet Liabilities, (h) Guarantee Obligations with respect to any of the foregoing and (i) all obligations of the kind referred to in the foregoing clauses secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, provided that, if such Person has not assumed such obligations, then the amount of Indebtedness of such Person for purposes of this clause (i) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) Other Taxes.
“Indemnitee” is defined in Section 10.6(b). “Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
“Ineligible Person” means (a) a natural person or (b) other than as set forth and in accordance with Section 13.1(b)(iii), the Company or any of its Subsidiaries or other controlled Affiliates. “Insolvency Regulation” means Regulation (EU) No 2015/848 on insolvency proceedings (recast).
“Initial New Term Loan Paydown” means the repayment of the New Term Loans on a pro rata basis on the Closing Date in an amount equal to $91,159,458.76 with respect to New Term Loans denominated in Dollars and €15,429,926.74 with respect to New Term Loans denominated in Euros.
“Intercreditor Agreements” means, collectively, the ABL Intercreditor Agreement, the First Lien Pari Passu Intercreditor Agreement, the Non-Released Multi Lien Intercreditor Agreement and the Multi Lien Intercreditor Agreement.
“Interest Expense” means, with respect to any period, the aggregate of all interest expense reported by the Company and its Subsidiaries in accordance with GAAP during such period, net of any cash interest income received by the Company and its Subsidiaries during such period from Investments. As used in this definition, the term “interest” shall include, without limitation, all interest, fees and costs payable with respect to the obligations under this Agreement (other than fees and costs which may be capitalized as transaction costs in accordance with GAAP), any discount in respect of sales of accounts receivable and/or related contract rights and the interest portion of Finance Lease Obligations during such period, all as determined in accordance with GAAP.
“Interest Period” means with respect to any Term Benchmark Advance, the period commencing on the date of such Advance and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment), as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section 2.20(e) shall be available for specification in such Borrowing Notice or Conversion/Continuation Notice. For purposes hereof, the date of an Advance initially shall be the date on which such Advance is made.
“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable and/or accrued expenses arising in the ordinary course of business payable in accordance with customary practices and loans to employees in the ordinary course of business), Acquisition or equity investment or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person.
“IRS” means the United States Internal Revenue Service.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, supplemented and implemented from time to time.
“Italian Civil Code” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Collateral Agreements” means the collateral agreements governed by Italian law set forth on Schedule 1.1(b)
hereof.
“Italian Collateral Documents” means the Italian Collateral Agreements and each security agreement, pledge,
debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Italian law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Italian Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Italian Corporate Crisis and Insolvency Code” means Legislative Decree No. 14 of 12 January 2019, aimed at implementing Law No. 155 of 19 October 2017, as amended and supplemented from time to time.
“Italian Guarantor” means a Guarantor incorporated under the laws of Italy.
“Italian Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Italy. “Judgment Currency” is defined in Section 16.6. “Junior Debt” means (i) the 2025 Notes, (ii) the New Term Loan Facility, (iii) the New 2L Notes, (iv) any Indebtedness (other than the ABL Facility) that is secured by a Lien on any Collateral ranking junior to the Lien on the Collateral securing any of the Obligations, (v) any unsecured Indebtedness, (vi) Subordinated Indebtedness, (vii) the Existing Term Loan Facility and
(viii) any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) any of the foregoing.
“Latest Maturity Date” means with respect to the issuance or incurrence of any Indebtedness or Equity Interests, the latest maturity date applicable to any Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is issued or incurred or such Equity Interests are issued.
“Lenders” means the lending institutions listed on the signature pages of this Agreement or otherwise party hereto as a Lender from time to time, and their respective successors and, to the extent permitted by Section 13.1, assigns. “Lending Installation” means, with respect to a Lender, any office, branch, subsidiary or Affiliate of such Lender. “Letter of Credit” of a Person means a letter of credit, bankers’ acceptance or similar instrument which is issued upon
the application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Loan Documents” means this Agreement, the Notes, any Guaranties, the Security Documents, and the Intercreditor Agreements (including in each case, any amendments thereto).
“Loan Party” means the Borrower or any Guarantor.
“Make Whole Amount” means, with respect to any Make Whole Trigger Event, an amount in cash determined as if the Term Loans were being voluntarily prepaid or repaid as of the date of such Make Whole Trigger Event equal to (x) the present value of all required interest payments on the principal amount of the Term Loans being so repaid or prepaid or required to be prepaid for the period from and including the date of such repayment, prepayment or date of required repayment to and including December 29, 2024 (in each case, calculated on the basis of the interest rate with respect to the Term Loans that is in effect on the date of such repayment, prepayment or date of required repayment and on the basis of actual days elapsed over a year of three hundred sixty-five (365) days) plus (y) 5% of the aggregate principal amount prepaid, repaid or required to be repaid. The present value calculation in clause (x) shall be calculated using the discount rate equal to the Treasury Rate as of such repayment or prepayment date or date of required repayment plus 50 basis points.
“Make Whole Provisions” means (A) the definitions of “Make Whole Amount”, “Prepayment Premium”, “Make Whole Trigger Event” and “Prepayment Premium Trigger Event”, (B) the inclusion of the Make Whole Amount, Prepayment Premium and any other premium payable hereunder including pursuant to Section 2.6.3 in (x) the definition of “Obligations” and (y) Sections 8.1(a) and (b), (C) Section 8.1(g) and (D) Section 2.6.3(c) and (d). “Make Whole Trigger Event” means any Prepayment Premium Trigger Event other than (a) a Prepayment Premium Trigger Event that occurs solely as a result of a mandatory prepayment pursuant to Section 2.6.5(b), (b) any Prepayment
Premium Trigger Event resulting solely from any Change of Control or (c) any Prepayment Premium Trigger Event resulting solely from any transformative acquisition or Disposition or similar transaction, in each case of this clause (c), involving all or substantially all of the assets of the Company.
“Margin Stock” means “margin stock” as defined in Regulations U or X or “marginable OTC stock” or “foreign margin stock” within the meaning of Regulation T.
“Material Adverse Effect” means a material adverse effect on (i) the business, Property, operations or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (ii) the ability of the Loan Parties, taken as a whole, to pay the Obligations under the Loan Documents, or (iii) the validity or enforceability against any of the Loan Parties of any of the Loan Documents or the rights or remedies of the Administrative Agent, Collateral Agent or the Lenders thereunder.
“Maximum Rate” is defined in Section 10.12. “Moody’s” means Moody’s Investors Service, Inc., and any successor-in-interest thereto.
“Mortgages” means each of the mortgages, land charges, deeds of hypothec, debentures and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Lenders in form and substance reasonably acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Mortgaged Property” means any real property and the improvements thereon owned in fee by a Loan Party with respect to which a Mortgage is granted pursuant to Section 4.01 (if any) or Section 6.9 (if any).
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Company or any member of the Controlled Group has an obligation to contribute or with respect to which the Company or any member of the Controlled Group has any liability.
“Multi Lien Intercreditor Agreement” means that certain Multi Lien Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent, the 2025 Notes Trustees, each of the 2025 Notes Collateral Agents, the New Term Loan Facility Administrative Agent, the New Term Loan Facility Collateral Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Net Cash Proceeds” means (a) in connection with any Asset Sale Prepayment Event or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and net proceeds from the sale or other disposition of any securities or other assets received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations secured by the properties or assets that are the subject of such Asset Sale Prepayment Event or Recovery Event (in each case, other than Junior Debt) or received in the form of any other non-cash asset that is not converted to cash within 180 days), net of (i) all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses incurred, and all federal, state, provincial, territorial, foreign and local taxes required to be paid or reasonably expected to be paid or accrued as a liability under GAAP (after taking into account any tax credits or deductions that are available or reasonably expected to be available and any tax sharing agreements), as a consequence of such Asset Sale Prepayment Event or Recovery Event and (ii) amounts required to be applied to the repayment of Indebtedness (A) that is secured by any assets (excluding Collateral) to the extent of the value of such assets being sold subject to such event and only to the extent such assets are held and sold (as applicable) by an External Subsidiary or (B) to the extent required by (x) solely with respect to ABL Priority Collateral, the terms of the ABL Facility, (y) any External Subsidiary Indebtedness and/or (z) applicable law, and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts or placement agents’ fees, listing fees, discounts or commissions, brokerage, consultant and other fees and charges and commissions and other customary fees and expenses actually incurred in connection therewith.
“New 2L Notes” means the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 issued pursuant to the New 2L Notes Indenture.
“New 2L Notes Collateral Agent” means GLAS Americas LLC.
“New 2L Notes Indenture” means that certain indenture, dated as of the Closing Date, among the Company, the Guarantors party thereto and the New 2L Notes Trustee and the New 2L Notes Collateral Agent, as amended or supplemented from time to time, relating to the New 2L Notes.
“New 2L Notes Trustee” means U.S. Bank Trust Company National Association.
“New Term Loan Facility” means that certain credit agreement, dated as of the Closing Date, among the Company, the guarantors parties thereto, the New Term Loan Facility Administrative Agent, the New Term Loan Facility Collateral Agent, and
the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time .
“New Term Loan Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the New Term Loan Facility, or any successor representative acting in such capacity.
“New Term Loan Facility Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the New Term Loan Facility, or any successor representative acting in such capacity.
“New Term Loans” means the loans made to the Company pursuant to the New Term Loan Facility. “New Term Loan Paydown” has the meaning assigned to such term in Section 5.12.
“Non-Cooperative Jurisdiction” means a non-cooperative state or territory (État ou territoire non coopératif) as set out in the lists referred to in Article 238-0 A of the French tax code, as such lists may be amended from time to time.
“Non-Released Multi Lien Intercreditor Agreement” means that certain Non-Released Multi Lien Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent, the 2025 Notes Trustees, each of the 2025 Notes Collateral Agents, the New Term Loan Facility Administrative Agent, the New Term Loan Facility Collateral Agent, the Existing Term Loan Facility Administrative Agent, the Existing Term Loan Facility Collateral Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Non-Spanish Lender” means a Lender resident for tax purposes outside Spain and which is: (a) tax resident in a member state of the European Union (other than Spain) or the European Economic Area, acting directly or through a permanent establishment located in another member state of the European Union or the European Economic Area, provided that it does not
(i) obtain income through a territory classified as a non-cooperative jurisdiction (in the terms of the First Additional Provision of Spanish Law 36/2006, of 29 November, on prevention measures and actions against tax fraud, as amended and restated from time to time) or through a member state of the European Economic Area not having an effective exchange of tax information agreement with Spain in force; nor (ii) act through a permanent establishment located in Spain or outside the European Union or the European Economic Area with which that Lender’s income is effectively connected; or (b) a Spanish Treaty Lender.
“Non-U.S. Lender” means a Lender that is not a U.S. Person. “Notes” is defined in Section 2.2.6. “NYFRB” means the Federal Reserve Bank of New York.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source. “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the
Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided that if the NYFRB Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement.
“Obligations” means collectively, the unpaid principal of and interest on the Loans, as well as (if applicable) the Make Whole Amount, Prepayment Premium and any other premium payable hereunder or on the Loans, including pursuant to Section 2.6.3, and all other obligations and liabilities of each Borrower and each Guarantor to the Administrative Agent, the Collateral Agent or the Lenders under this Agreement and the other Loan Documents (including, without limitation, interest accruing at the then applicable rate provided in this Agreement or any other applicable Loan Document after the maturity of the Loans and interest accruing at the then applicable rate provided in this Agreement or any other applicable Loan Document after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower or any Guarantor, as the case may be, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding, and including under the Parallel Debt pursuant to Section 17.1), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the other Loan Documents or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the Borrower or any Guarantor pursuant to the terms of this Agreement or any other Loan Document). “Off-Balance Sheet Liability” of a Person means (i) any obligation under a Sale and Leaseback Transaction which is not a Finance Lease Obligation, (ii) any so-called “synthetic lease” or “tax ownership operating lease” transaction entered into by such Person, (iii) any factoring or similar sale of accounts receivable and related rights to the extent recourse to the Company or any of its Subsidiaries, or (iv) any other transaction (excluding operating leases for purposes of this clause (iv)) which is the functional equivalent of or takes the place of borrowing (in the case of transactions described in, or equivalent to those described
in clause (iii) above, solely to the extent recourse to the Company or any of its Subsidiaries) but which does not constitute a liability on the balance sheet of such Person; in all of the foregoing cases, notwithstanding anything herein to the contrary, the outstanding amount of any Off-Balance Sheet Liability shall be calculated based on the aggregate outstanding amount of obligations outstanding under the legal documents entered into as part of any such transaction on any date of determination that would be characterized as principal if such transaction were structured as a secured lending transaction, whether or not shown as a liability on a consolidated balance sheet of such Person, in a manner reasonably satisfactory to the Administrative Agent.
“Organizational Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of association, formation or organization and operating agreement; 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 (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction).
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or from the registration, 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 under Section 3.5(b)). “Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Paderborn Property” means the fee-owned real property located at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany. “Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary. “Participant” is defined in Section 13.1(c). “Participant Register” has the meaning assigned to such term in Section 13.1(c). “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.
“Payment Date” means the last Business Day of each March, June, September and December occurring after the Closing Date, beginning with March 31, 2023.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004 (UK).
“Permitted Amendment” means an amendment to this Agreement and the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.22, providing for an extension of the maturity date and/or amortization applicable to the Loans and/or Commitments of the Accepting Lenders of a relevant Class and that, in connection therewith, may also provide for (a)(i) a change in the Applicable Margin with respect to the Loans and/or Commitments of the Accepting Lenders subject to such Permitted Amendment and/or (ii) a change in the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders in respect of such Loans and/or Commitments, (b) changes to any prepayment premiums with respect to the applicable Loans and Commitments of a relevant Class, (c) such amendments to this Agreement and the other Loan Documents as shall be appropriate, in the reasonable judgment of the Administrative Agent, to provide the rights and benefits of this Agreement and other Loan Documents to each new “Class” of loans and/or commitments resulting therefrom and (d) additional amendments to the terms of this Agreement applicable to the applicable Loans and/or Commitments of the Accepting Lenders that are (i) less favorable to such Accepting Lenders than the terms of this Agreement immediately prior to giving effect to such Permitted Amendment or (ii) no more restrictive, when taken as a whole, than those under this Agreement benefiting the Class of Loans subject thereto as in effect immediately prior to giving effect to such Permitted Amendment (except for covenants or other provisions applicable only to periods after the then latest final maturity date of any Loans or Commitments under this Agreement) and that, in each case of clauses (d)(i) and (ii), are reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders).
“Permitted Encumbrances” means:
(a)Liens imposed by law or any Governmental Authority for taxes, assessments or governmental charges or levies that are not yet overdue for a period of more than 45 days or are being contested in good faith by appropriate proceedings and with respect to which reserves have been set aside in accordance with GAAP;
(b)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in good faith by appropriate proceedings and with respect to which reserves have been set aside in accordance with GAAP;
(c)pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security or employment laws or regulations;
(d)deposits to secure the performance of bids, trade contracts, tenders, government contracts, leases, statutory obligations, surety, stay, custom and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e)judgment liens in respect of judgments that do not constitute a Default under Section 7.9 or that secure appeal or surety bonds related to such judgments; (f)easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;
(g)easements, zoning restrictions, rights-of-way, use restrictions, encroachments, protrusions, minor defects or irregularities in title, reservations (including reservations in any original grant from any government of any water or mineral rights or interests therein) and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company and its Subsidiaries, taken as a whole;
(h)Liens in favor of payor banks having a right of setoff, revocation, refund or chargeback with respect of money or instruments of the Company or any Subsidiary on deposit with or in possession of such bank;
(i)Liens granted by (1) a Loan Party to another Loan Party, (2) a Subsidiary that is not a Loan Party to a Loan Party and (3) a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party; provided that, prior to the date on which the Existing Term Loans are no longer outstanding, this paragraph (i) shall not permit Liens granted by a Foreign Loan Party or any Subsidiary of a Foreign Loan Party to the Company or a Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose;
(j)for the avoidance of doubt, other Liens (not securing Indebtedness) incidental to the conduct of the business of the Company or any of its Subsidiaries, as the case may be, or the ownership of their assets which do not individually or in the aggregate materially adversely affect the value of the Company or materially impair the operation of the business of the Company or its Subsidiaries;
(k)Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(l)leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any Subsidiaries and do not secure any Indebtedness;
(m)deposits in the ordinary course of business to secure liability to insurance carriers;
(n)options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and the like permitted to be made under this Agreement;
(o)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business of the Company or such Subsidiary;
(p)rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial institutions (i) in relation to the establishment, maintenance or administration of deposit accounts, securities accounts or arrangements relating to a cash management agreement or Swap Agreement, (ii) in relation to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary or (iii) in relation to the right
of setoff, revocation, refund or chargeback of a collecting bank with respect to money or instruments in the possession of such bank;
(q)Liens in favor of customs and revenues authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; and
(r)precautionary financing statement filings in connection with operating leases.
provided that, in any event, the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness for borrowed money.
“Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that
(a) the original principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon, any committed or undrawn amounts and underwriting discounts, defeasance costs, fees, commissions and expenses, associated with such Permitted Refinancing Indebtedness), (b) the final maturity date and weighted average life of such Permitted Refinancing Indebtedness is no earlier than the final maturity date and then remaining weighted average life of the Indebtedness being Refinanced, (c) if the original Indebtedness being Refinanced is by its terms subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole, (d) no Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Indebtedness being Refinanced, (e) if the Indebtedness being Refinanced is (or would have been required to be) secured (whether equally and ratably with, or junior to, the Obligations or otherwise), such Permitted Refinancing Indebtedness may be secured by a Lien on the same property that secures the Indebtedness that is being Refinanced on terms no less favorable (including as to priority of such Lien), taken as a whole, to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced, and to the extent the Obligations are secured by such property, shall be subject to an applicable Intercreditor Agreement in form and substance substantially the same as the Intercreditor Agreement to which the Indebtedness being Refinanced is subject or reasonably acceptable to the Administrative Agent and the Collateral Agent (acting at the direction of the Required Lenders) and (f) if the Indebtedness being Refinanced is unsecured, such Permitted Refinancing Indebtedness shall be unsecured.
“Person” means any natural person, corporation, firm, joint venture, limited liability company, unlimited liability company, partnership, association, enterprise, company or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan (as defined in Section 3(2) of ERISA) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 or 430 of the Code or Section 302 of ERISA and as to which the Company or any member of the Controlled Group has any obligation to contribute or with respect to which the Company or any member of the controlled Group has any liability.
“Polish Collateral Agreements” means the collateral agreements governed by Polish law set forth on Schedule 1.1(b)
hereof.
“Polish Collateral Documents” means the Polish Collateral Agreements and each mortgage (hipoteka), assignment
(cesja), transfer of title by way of security (przewłaszczenie na zabezpieczenie), pledge (zastawy), suretyship (poręczenie), guarantee (gwarancja), letter of credit (akredytywa), promissory note (weksel własny), bill of exchange (weksel trasowany), right of set-off (prawo potrącenia), title retention (prawo zatrzymania), right of first refusal (prawo pierwokupu, prawo pierwszeństwa), power of attorney by way of security (pełnomocnictwo na zabezpieczenie), accession to debt (przystąpienie do długu), submission to execution (poddanie się egzekucji) or any other agreement, security interest, encumbrance or arrangement having the effect of security or granting a security or giving security or preferential ranking to a creditor, as applicable, governed by Polish law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Polish Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Polish Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Poland. “Pounds Sterling” or “£” means the lawful currency of the United Kingdom.
“PPSA” means the Personal Property Security Act (Ontario), as amended from time to time (or any successor statute) including the regulations and Minister’s orders thereto; provided that, if validity, perfection or the effect of perfection or non- perfection or opposability or the priority of any Lien created hereunder on the Collateral is governed by the personal (movable) property security legislation or other applicable legislation with respect to personal (movable) property security in effect in a jurisdiction other than Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including,
without limitation, the Civil Code of Quebec) in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such validity, perfection, effect of perfection or non-perfection or opposability or priority.
“Prepayment Premium” has the meaning assigned to it in Section 2.6.3(c).
“Prepayment Premium Trigger Event” means (a) any voluntary prepayment or any mandatory prepayment pursuant to Section 2.6.5(a) or Section 2.6.5(b) (other than a mandatory prepayment from a Recovery Event), or any other prepayment, redemption, repurchase, repayment (including at maturity) or payment (whether voluntarily, mandatorily or otherwise), in each case, other than a regularly scheduled repayment, including on the date specified in clause (a) of the definition of Term Loan Maturity Date) by the Company or any Guarantor of all, or any part, of the principal balance of any Term Loans whether in whole or in part, and whether before or after (i) the occurrence of a Default, or (ii) the commencement of any proceeding under any Debtor Relief Law, and notwithstanding any acceleration (for any reason) of the Term Loans; (b) the acceleration of any of the Term Loans for any reason, including, but not limited to, acceleration in accordance with Article VIII, including as a result of the commencement of a proceeding under any Debtor Relief Law; (c) the satisfaction, release, payment, restructuring, reorganization, replacement, reinstatement, defeasance or compromise of any of the Term Loans in any proceeding under any Debtor Relief Law, foreclosure (whether by power of judicial proceeding or otherwise) or deed in lieu of foreclosure or the making of a distribution of any kind in any proceeding under any Debtor Relief Law to the Term Lenders (whether directly or indirectly, including through the Administrative Agent or any other distribution agent), in full or partial satisfaction of the Term Loans; (d) the termination of this Agreement for any reason (other than as a result of the payment in full at the regularly scheduled maturity of the Obligations in respect of the Term Loans (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) on the Term Loan Maturity Date); (e) any amendment, waiver or consent hereunder occurs that reduces the All-in Yield applicable to the Credit Facilities or (f) any forced assignment of Term Loans occurs pursuant to Section 3.5(b)(iv). Solely for purposes of the definition of the term “Make Whole Amount”, if a Make Whole Trigger Event occurs under clause (b), (c), (d) or (e) above, the entire outstanding principal amount of the Term Loans shall be deemed to have been prepaid on the date on which such Make Whole Trigger Event occurs. “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Pro Forma Basis” means, for purposes of calculating compliance of any transaction with any provision hereof which refers to a Pro Forma Basis, that the transaction in question (including any related Acquisition, or other Investment and, in each case, payment of consideration therefor) shall be deemed to have occurred as of the first day of the most recent period of four consecutive fiscal quarters of the Company for which financial statements are required to have been delivered pursuant to Section 6.1(i) or (ii) or, if such calculation is made prior to the first delivery of such financial statements, as of the first day of the period of four consecutive fiscal quarters ending on September 30, 2015. In connection with any calculation of the Total Net Leverage Ratio, upon giving effect to a transaction on a “Pro Forma Basis”, (i) any Indebtedness incurred, repaid, repurchased or redeemed by the Company or any of its Subsidiaries in connection with such transaction (or any other transaction which occurred during the relevant four fiscal quarter period or during the period from the last day of such period to and including the date of determination) shall be deemed to have been incurred or repaid, as the case may be, as of the first day of the relevant four fiscal quarter period, (ii) if such Indebtedness has a floating or formula rate, then the rate of interest for such Indebtedness for the applicable period for purposes of the calculations contemplated by this definition shall be determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of such calculations (giving consideration to any applicable rate “floor”), (iii) in the case of any determination of the permissibility of the incurrence of Indebtedness, if such Indebtedness is revolving in nature, a borrowing of the maximum amount of loans available shall be assumed, (iv) in the case of any determination of the permissibility of the incurrence of Indebtedness, the cash proceeds of all such Indebtedness shall be disregarded in calculating the Total Net Leverage Ratio, as applicable, (v) income statement items (whether positive or negative) attributable to all property acquired in such transaction or to the Investment comprising such transaction, as applicable, shall be included as if such transaction has occurred as of the first day of the relevant four-fiscal-quarter period and (vi) without duplication of subclauses (g), (h) or (i) of the definition of “EBIT”, such calculation shall give effect to Synergies and Costs of Synergies resulting from or relating to the transaction in question and projected by the Company in good faith to be realized by the Company and its Subsidiaries subject, in any calculation of pro forma EBIT or EBITDA, to the applicable limitations on such Synergies and Costs of Synergies set forth in the definition of “EBIT”. “Pro Rata Share” means, for each Lender, the ratio of such Lender’s Term Loans to the aggregate amount of all outstanding Term Loans.
“Property” of a Person means any and all property, whether real, personal, movable, immovable, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8) (D).
“QFC Credit Support” has the meaning assigned to it in Section 17.3. “Recipient” means, as applicable, (a) the Administrative Agent, (b) the Collateral Agent and (c) any Lender.
“Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim or any condemnation proceeding relating to any Property of the Company or any Subsidiary, in an amount that if constituting a Disposition of such Property would have constituted an Asset Sale Prepayment Event.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (New York time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting or (2) if such Benchmark is not the Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinance” is defined in the definition of “Permitted Refinancing Indebtedness”. “Register” has the meaning assigned to such term in Section 13.1(b)(v). “Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors.
“Reinvestment Deferred Amount” means with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by the Company or any Subsidiary in connection therewith that are not applied to prepay the Term Loans pursuant to Section 2.6.5 as a result of the Company’s election to reinvest all or a portion of the Net Cash Proceeds. “Reinvestment Event” means any Asset Sale Prepayment Event or Recovery Event in respect of which the Company elects to reinvest a portion of the Net Cash Proceeds pursuant to Section 2.6.5. “Reinvestment Prepayment Amount” means with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to maintain, develop, construct, improve, upgrade or repair assets (other than current assets) useful in the Company’s or its Subsidiaries’ business or to replace the assets subject to such applicable Asset Sale Prepayment Event or Recovery Event.
“Reinvestment Prepayment Date” means with respect to any Reinvestment Event, the earlier of (a) the date occurring 90 days after such Reinvestment Event and (b) the date on which the Borrower shall have determined not to, or shall have otherwise ceased to, maintain, develop, construct, improve, upgrade or repair assets (other than current assets) useful in the Company’s or its Subsidiaries’ business with all or any portion of the relevant Reinvestment Deferred Amount or to replace the assets subject to such Asset Sale Prepayment Event or Recovery Event with all or any portion of the relevant Reinvestment Deferred Amount.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors, representatives and controlling persons of such Person and such Person’s Affiliates.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).
“Relevant Governmental Body” means, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto.
“Relevant Rate” means with respect to any Term Benchmark Advance, the Adjusted Term SOFR Rate.
“Remedial Action” means an action to investigate, remediate or otherwise address a Release of Hazardous Substances or other violation of Environmental Laws.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30- day notice period has been waived.
“Required Accounts” means, (A) all deposit accounts or securities accounts of the Domestic Loan Parties and the Canadian Loan Parties, other than (i) accounts having a de minimis balance; provided that the aggregate balance in all accounts excluded by this de minimis threshold shall not exceed $2,500,000 at any time, (ii) payroll, disbursement and other fiduciary accounts, (iii) zero balance disbursement account, (iv) other trust, escrow, customs and fiduciary accounts, (v) cash collateral accounts solely holding cash collateral upon which Liens permitted by Section 6.16 exist and (vi) tax accounts, including, without limitation, sales tax accounts and (B) all deposit accounts and securities accounts that are subject to control agreements in favor of the ABL Collateral Agent. “Required Lenders” means Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 50% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders.
“Requirement of Law” means as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Indebtedness” is defined in Section 6.26. “Retained Insolvency Regulation” means the Insolvency Regulation as it applies under English law, taking into account: (i) its having become part of English domestic law on and after 11pm (UK time) on 31 December 2020 (“IP completion day”) pursuant to the European Union (Withdrawal) Act 2018 (“EUWA”); and (ii) any modifications to it that have taken effect on or after IP completion day pursuant to the EUWA or otherwise under English law (but not, for the avoidance of doubt, any modifications to it that have taken effect on or after IP completion day under European Union law).
“Revolver Exchange” has the meaning assigned to such term in the Transaction Support Agreement. “S&P” means Standard & Poor’s Financial Services, LLC and any successor-in-interest thereto.
“Sale and Leaseback Transaction” means any sale or other transfer of property by any Person with the intent to lease or use such Property as lessee or in any other similar capacity (but excluding, for the avoidance of doubt, any sale and leaseback of inventory or equipment that is subleased or otherwise leased directly or indirectly to any customer of the Company or a Subsidiary).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union, the Government of Canada or His Majesty’s Treasury of the United Kingdom.
“Sanctioned Country” means, at any time, a country or territory which is the subject or target of any Sanctions (as of the Closing Date, Crimea, the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, and non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, Cuba (other than with respect to a Canadian Loan Party), Iran, North Korea, and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, the Government of Canada or His Majesty’s Treasury of the United Kingdom, (b) any Person located, ordinarily resident in, or organized under the laws of, a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject or target of Sanctions.
“SEC” means the Securities and Exchange Commission or any governmental authority succeeding to any or all of the functions of the Securities and Exchange Commission.
“Section” means a numbered section of this Agreement, unless another document is specifically referenced.
“Secured Parties” means the Administrative Agent, the Collateral Agent, the Lenders and each other Person who is owed any portion of the Obligations.
“Security Agreement” means the New York law governed security agreement among the Company, the other Guarantors and the Collateral Agent in form and substance reasonably satisfactory to the Collateral Agent.
“Security Documents” means the Security Agreement, each Mortgage, the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, executed and delivered by the Borrower and/or the other Guarantors in
connection with this Agreement, including the Collateral and Guarantee Requirements, Sections 2.18, 6.9 and 6.12 to secure any of the Obligations.
“Significant Subsidiary” means each present or future subsidiary of the Company which would constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X as currently in effect promulgated by the SEC.
“Similar Business” means any business similar in nature to any business conducted or proposed to be conducted by the Company and its Subsidiaries on the Closing Date or any business that is reasonably related, complementary, incidental or ancillary thereto or a reasonable extension, development or expansion of, the business conducted by the Company and its Subsidiaries on the Closing Date, in each case, as determined in good faith by the Company.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”. “SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Spanish Civil Procedure Law” means Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil as amended or consolidated from time to time.
“Spanish Collateral Agreements” means the collateral agreements governed by Spanish law set forth on Schedule 1.1(b) hereof.
“Spanish Collateral Documents” means the Spanish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Spanish law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Spanish Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Spanish Companies Act” means Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital, as amended or consolidated from time to time.
“Spanish Insolvency Act” means Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal as amended or consolidated from time to time.
“Spanish Lender” means a Lender which is: (a) a Spanish financial entity as referred to in paragraph (c) of article 61 of the Spanish Corporate Income Tax Regulations approved by Spanish Royal Decree 634/2015, of 10 July 2015 (Reglamento del Impuesto sobre Sociedades aprobado por el Real Decreto 634/2015, de 10 de julio) as amended or restated; (b) a Spanish permanent establishment of a non-Spanish financial entity as referred to in the second paragraph of article 8.1 of the Spanish Non-Resident Income Tax Regulations approved by Spanish Royal Decree 1776/2004, of 30 July 2004 (Reglamento del Impuesto sobre la Renta de no Residentes aprobado por el Real Decreto 1776/2004, de 30 de julio) as amended or restated; or (c) a securitization fund of those referred to in paragraph (k) of article 61 of the mentioned Spanish Corporate Income Tax Regulations approved by Spanish Royal Decree 634/2015, of 10 July 2015 (Reglamento del Impuesto sobre Sociedades aprobado por el Real Decreto 634/2015, de 10 de julio) as amended or restated.
“Spanish Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Spain.
“Spanish Public Document” means a documento público, being either a public deed (escritura pública) or a deed
(póliza).
“Spanish Treaty Lender” means a Lender which: (a) is treated as a resident of a Spanish Treaty State for the purposes
of the Spanish Treaty; (b) does not carry on a business in Spain through a permanent establishment with which that Lender’s participation in the Credit Facilities is effectively connected; and (c) fulfils any conditions which must be fulfilled under the Spanish Treaty for tax residents of that Spanish Treaty State (including the completion of any procedural formalities) to obtain full exemption from Spanish taxation on interest payable to that Lender in respect of an advance under the Credit Facilities.
“Spanish Treaty State” means a jurisdiction having a double taxation agreement with Spain (a “Spanish Treaty”) which makes provision for full exemption from tax imposed by Spain on interest.
“Specified Foreign Jurisdictions” means Germany, Canada, Belgium, France, England and Wales, Sweden, Spain, Poland, Italy and the Netherlands.
“Specified Foreign Subsidiary” means each Subsidiary organized under the laws of a Specified Foreign Jurisdiction. “Specified Intercompany Claims” means, collectively, (i) that certain intercompany claim owed by Diebold Nixdorf
Holding Germany GmbH to the Company (the amount of which, as of the Closing Date, is approximately €656,000,000) and (ii)
that certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to the Dutch Issuer (the amount of which, as of the Closing Date, is approximately €343,000,000).
“Subordinated Indebtedness” means any Indebtedness of the Company or any Subsidiary that is by its terms contractually subordinated in right of payment to any of the Obligations.
“Subordination Agreement” means a subordination agreement substantially in the form of Exhibit G or any other form approved by the Required Lenders or the Administrative Agent and the Company.
“Subsidiary” of a Person means (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries or (b) any partnership, limited liability company, unlimited liability company, association, joint venture or other business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary” means a Subsidiary of the Company.
“Substantial Portion” means, with respect to the Property of the Company and its Subsidiaries, Property which
(a) represents consolidated assets in excess of $726,850,000 or (b) is responsible for consolidated net sales in excess of
$887,880,000.
“Supported QFC” has the meaning assigned to it in Section 17.3. “Supermajority Lenders” means Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 66 2/3% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders.
“Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Agreement” 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, including any such obligations or liabilities under any master agreement.
“Swedish Collateral” has the meaning assigned to it in Section 1.13(l).
“Swedish Collateral Agreements” means the collateral agreements governed by Swedish law set forth on Schedule 1.1(b) hereof.
“Swedish Collateral Documents” means the Swedish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Swedish law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Swedish Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Swedish Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Sweden.
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Benchmark” when used in reference to any Loan or Advance, refers to whether such Loan, or the Loans comprising such Advance, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate.
“Term Benchmark Rate” means, for any day, a rate per annum equal to the sum of (a) the Applicable Margin plus (b) the Adjusted Term SOFR Rate.
“Term Lender” means a Lender with a Commitment or an outstanding Term Loan.
“Term Loan” or “Loan” means the loans made by the Lenders to the Borrower pursuant to Section 2.1(a). The aggregate amount of the Term Loans as of the Closing Date is $400,631,233 (inclusive, for the avoidance of doubt, of the ticking fee payable pursuant to Section 2.5(b)).
“Term Loan Exchange” has the meaning assigned to such term in the Transaction Support Agreement.
“Term Loan Maturity Date” means the earliest to occur of (a) July 15, 2025 and (b) the date the maturity of the Term Loans is accelerated pursuant to Article VIII. “Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate. “Term SOFR Rate” means, with respect to any Term Benchmark Advance and for any tenor comparable to the
applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., New York time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Advance denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward- looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Total Assets” means the total assets of the Company and its Subsidiaries, determined in accordance with GAAP. “Total Debt” as of any date, means all of the following for the Company and its Subsidiaries on a consolidated basis
and without duplication: (i) all debt for borrowed money and similar monetary obligations evidenced by bonds, notes, debentures, Finance Lease Obligations or otherwise, including without limitation obligations in respect of the deferred purchase price of properties or assets, in each case whether direct or indirect (other than accounts payable and/or accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case arising in the ordinary course of such Person’s business payable in accordance with customary practices); (ii) all reimbursement obligations under outstanding Letters of Credit (other than commercial Letters of Credit referenced in clause (i) above or Letters of Credit that are 100% cash collateralized) in respect of drafts which (A) may be presented (other than performance or standby Letters of Credit) or (B) have been presented and have not yet been paid and are not included in clause (i) above; (iii) all Off-Balance Sheet Liabilities; (iv) all Guarantee Obligations of indebtedness or liabilities of the type described in clauses (i), (ii) or (iii) above and (v) all obligations of the kind referred to in the foregoing clauses (i), (ii), (iii) or (iv) secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, provided that, if such Person has not assumed such obligations, then the amount of debt of such Person for purposes of this clause (v) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations. Notwithstanding the foregoing, each of the following shall be excluded from, and not considered part of, Total Debt: (1) money borrowed by the Company against the cash value of life insurance policies owned by the Company; (2) [reserved]; (3) Indebtedness consisting of avals by any of the Company’s Subsidiaries for the benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the Company’s other Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices; and (4) Indebtedness permitted under Section 6.18(x). “Total Net Debt” means, at any time, Total Debt minus 75% of all Unencumbered Cash with maturities of less than one year of the Company and its Subsidiaries calculated on a consolidated basis in accordance with GAAP.
“Total Net Leverage Ratio” means, as of any date, the ratio of (a) Total Net Debt on such date to (b) EBITDA for the period of four consecutive fiscal quarters ended on or most recently prior to such date.
“Transactions” has the meaning assigned to such term in the Transaction Support Agreement.
“Transaction Support Agreement” means that certain Transaction Support Agreement, dated as of October 20, 2022 (as amended by that certain First Amendment thereto, dated as of November 28, 2022 and as may be further amended from time to time), by and among the Company, the other Company Parties (as defined therein) and the Consenting Parties (as defined therein).
“Transferee” is defined in Section 13.2. “Treasury Rate” means as of any date the Make Whole Amount is payable (the “Event Date”) with respect to the Term Loans, the yield to maturity at the time of computation of U.S. Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the Event Date (or, if such Statistical Release is no longer published, any publicly available source or similar market data)) most nearly equal to the period from the Event Date to December 29, 2024; provided, however, that if such period is not equal to the constant maturity of a U.S. Treasury security for which a weekly average yield is given, the Treasury Rate shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average yields of
U.S. Treasury securities for which such yields are given, except that if such period is less than one year, the weekly average yield on actually traded U.S. Treasury securities adjusted to a constant maturity of one year will be used.
“Type” means, with respect to any Advance, its nature as a Floating Rate Advance or Term Benchmark Advance. “UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect in the State of New York;
provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unencumbered Cash” means all cash and Cash Equivalents owned by the Company or any Subsidiary not disclosed as restricted cash or restricted Cash Equivalents in the Company’s financial statements furnished pursuant to Section 6.1(i) or (ii) (or as applicable prior to delivery thereof, those referenced in Section 5.4); provided that (i) cash or Cash Equivalents segregated or held in escrow for the sole purpose of refinancing Indebtedness permitted hereunder (and the payment of fees and expenses in connection therewith) while such refinancing is pending (provided such proceeds are so utilized within 11 months of incurrence thereof), in each case, shall not be disqualified from being considered Unencumbered Cash solely due to Liens or restrictions arising from such escrow arrangement or restricted usage and (ii) any cash and Cash Equivalents subject to any cash pooling arrangement or cash management in respect of netting services and similar arrangements shall be considered Unencumbered Cash only to the extent, with respect to any such arrangements, that the total amount of cash and Cash Equivalent on deposit subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto. “Unfunded Liabilities” means the amount (if any) by which the actuarial present value of all benefit liabilities under a Plan exceeds the fair market value of all such Plan assets allocable to such benefit liabilities, all determined as of the then most recent valuation date for such Plan in accordance with Section 4001(a)(18) of ERISA.
“Units” has the meaning assigned to such term in the Transaction Support Agreement.
“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.
“U.S. Dollar Loans” means any Loan denominated in U.S. Dollars.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on
which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code. “U.S. Special Resolution Regime” has the meaning assigned to it in Section 17.3. “U.S. Tax Certificate” has the meaning assigned to such term in Section 3.4(f)(ii)(D). “Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or similar persons thereof.
“Warrants” has the meaning assigned to such term in the Transaction Support Agreement.
“Wholly Owned Subsidiary” of a Person means any other Person of which 100% of the outstanding Capital Stock of which (other than directors’ qualifying shares required by law) shall at the time be owned or controlled, directly or indirectly, by such Person and/or one or more Affiliates of such Person. “Wholly Owned Domestic Subsidiary” has the correlative meaning with respect to the such type of Subsidiary.
“Wincor Nixdorf Defined Benefit Pension Scheme” means the defined benefit pension scheme established pursuant to a definitive deed dated 1 December 2000 between Diebold Nixdorf (UK) Limited and Richard Mosely Bearpark.
“Withholding Agent” means, as applicable, any Loan Party or the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.1.Rules of Construction. All terms defined in Section 1.1 shall include both the singular and the plural forms thereof and shall be construed accordingly. Use of the terms “herein”, “hereof”, and “hereunder” shall be deemed references to this Agreement in its entirety and not to the Section or clause in which such term appears. References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided. Notwithstanding anything herein, in any financial statements of the Company or in GAAP to the contrary, for purposes of calculating the Applicable Margin, including defined terms used therein, and for purposes of calculating any other applicable financial ratios or incurrence tests hereunder, any acquisitions or Dispositions outside the ordinary course of business made by the Company or any of its Subsidiaries, including through mergers, amalgamations or consolidations, the incurrence or repayment of Indebtedness and any other applicable transactions related thereto and occurring during the period for which such items were calculated, shall be deemed to have occurred on the first day of the relevant period for which such items were calculated on a Pro Forma Basis.
1.2.Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company 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 without giving effect to such change in GAAP or in the application thereof that is the subject of such notice until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, 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 any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Company or any Subsidiary at “fair value”, as defined therein, without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding any changes in GAAP after December 31, 2018, any lease of the Company or its Subsidiaries that would be characterized as an operating lease under GAAP in effect on December 31, 2018, whether such lease is entered into before or after December 31, 2018, shall not constitute Indebtedness or a Finance Lease Obligation of the Company or any Subsidiary under this Agreement or any other Loan Document as a result of such changes in GAAP.
1.3.Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in dollars may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.20(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrower. The Administrative Agent (acting at the direction of the Required Lenders) may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrower, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.4.Foreign Currency Calculations.
(a)[Reserved].
(b)For purposes of any determination under Section 6.15, 6.16, 6.18, 7.5, 7.9 or 7.10, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than U.S. Dollars shall be translated into the Dollar Equivalent Amount at the Exchange Rate in effect on the date of such determination; provided that no Default shall arise as a result of any limitation set forth in U.S. Dollars in Section 6.15, 6.16 or 6.18 being exceeded solely as a result of changes in the Exchange Rate from those rates applicable at the time or times Investments, Indebtedness or Liens were initially consummated in reliance on the exceptions under such Sections. 1.5.Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
1.6.German Terms.
“AktG” means the German stock corporation act (Aktiengesetz). “BGB” means the German civil code (Bürgerliches Gesetzbuch). “HGB” means the German commercial code (Handelsgesetzbuch). “InsO” means the German insolvency code (Insolvenzordnung).
In this Agreement, where it relates to a German Loan Party, any reference to:
(a)a person being unable to pay its debts means that person being in a state of Zahlungsunfähigkeit under section 17 of the German Insolvency Law (Insolvenzordnung) or being over-indebted (überschuldet) under section 19 of the German Insolvency Law (Insolvenzordnung);
(b)a liquidator, trustee in bankruptcy, compulsory manager, receiver or administrator includes an
Insolvenzverwalter, a vorläufiger Insolvenzverwalter or a Sachwalter;
(c)winding up, administration or dissolution includes insolvency proceedings (Insolvenzverfahren);
(d)in relation to any Collateral or other security rights or security assets governed by German law or located in Germany “trust”, “trustee” or “on trust” shall be construed as “Treuhand”, “Treuhänder” or “treuhänderisch”;
(e)“by laws” or “constitutional documents” includes reference to articles of association (Satzung) or partnership agreement (Gesellschaftsvertrag); and
(f)a “director” or “officer” includes any statutory legal representative(s) (organschaftlicher Vertreter) of a person, including but not limited to, a managing director (Geschäftsführer) or member of the board of directors (Vorstand) or an authorised representative (Prokurist).
This Agreement is made in the English language. However, where a German translation of a word or phrase appears in the text of this Agreement, the German meaning and the underlying German law legal concept shall prevail.
1.7.Polish Terms. In this Agreement reference to:
“Polish Act on Registered Pledges” means the Polish Act on Registered Pledges and the Pledge Register dated 6 December 1996, as amended.
“Polish Bankruptcy Law” means the Polish Bankruptcy Law dated 28 February 2003, as amended. “Polish Civil Code” means the Polish Civil Code dated 23 April 1964, as amended.
“Polish Civil Procedure Code” means the Polish Civil Procedure Code dated 17 November 1964, as amended.
“Polish Commercial Companies Code” means the Polish Commercial Companies Code dated 15 September 2000, as amended.
“Polish Restructuring Law” means the Polish Restructuring Law dated 15 May 2015, as amended. In this Agreement, where it relates to a Polish Loan Party, a reference to:
(a)an “agent” includes an attorney (pełnomocnik), delivery agent (pełnomocnik do doręczeń), pledge administrator (administrator zastawu), mortgage administrator (administrator hipoteki) and mandatory (zleceniobiorca) of a person;
(b)a “composition”, “compromise”, “assignment”, “reorganisation” includes a układ concluded or approved during insolvency proceedings under Polish Bankruptcy Law or restructuring proceedings (postępowanie restrukturyzacyjne) under Polish Restructuring Law. This also includes a partial composition (układ częściowy);
(c)“receiver” or “administrator” includes a tymczasowy nadzorca sądowy, tymczasowy zarządca, nadzorca, nadzorca sądowy, nadzorca układu, syndyk, zarządca or zarządca przymusowy, as defined in Polish Bankruptcy Law or Polish Restructuring Law. This also includes zarządca appointed under the Act on Registered Pledges or the Polish Civil Procedure Code and a kurator sądowy appointed under the Polish Civil Code;
(d)a “dissolution” includes a rozwiązanie spółki in accordance with the Polish Commercial Companies
Code;
(e)a “liquidator” includes a likwidator appointed under the Polish Commercial Companies Code;
(f)a “moratorium” includes a odroczenie spłaty zobowiązań pieniężnych;
(g)a “security” or “security interest” means any mortgage (hipoteka), pledge (zastaw), registered
pledge (zastaw rejestrowy), financial pledge (zastaw finansowy), security assignment (przelew praw na zabezpieczenie), security transfer of title (przewłaszczenie na zabezpieczenie), retention right (prawo zatrzymania), right to reclaim sold goods (zastrzeżenie własności rzeczy sprzedanej);
(h)a “winding up” includes a declaration of bankruptcy.
1.8.Dutch Terms. As used in this Agreement, where it relates to a Dutch Loan Party, a reference to: (i) organizational documents means the deed of incorporation (akte van oprichting), articles of association (statuten) and an extract of the Dutch Chamber of Commerce (Kamer van Koophandel), (ii) a necessary corporate or other organizational action where applicable includes without limitation: (A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and (B) obtaining a positive or neutral advice, which, if conditional, contains conditions which in the opinion of the Administrative Agent are acceptable and can reasonably be expected to be satisfied by the relevant Dutch Loan Party without breaching the terms of any Loan Document, from the competent works council(s); (iii) any Lien and any security interest includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (zakelijk recht) created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); (iv) a bankruptcy, insolvency, liquidation, winding up, or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (v) a moratorium includes (voorlopige) surseance van betaling and granted a moratorium includes (voorlopige) surseance verleend; (vi) a trustee, includes a curator and a liquidator includes a curator; (vii) an administrator includes a bewindvoerder, a beoogd bewinvoerder, a herstructureringsdeskundige or an observator, (viii) a receiver or an administrative receiver does not include a curator or bewindvoerder; (ix) any “procedure or step” taken in connection with insolvency proceedings includes a Dutch Loan Party having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) (x) an attachment includes a beslag, (xi) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur), and (xii) a reorganization includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet), (xiii) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur) and (xiv) a “subsidiary” includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code (Burgerlijk Wetboek). Where “the Netherlands” or “Dutch” is referred to it refers only to the European part of the Kingdom of the Netherlands and its laws respectively.
1.9.Italian Terms.
In this Agreement reference to (in the case of paragraph (a) or (b) below, in relation to (or to the obligation of) any Italian Guarantor):
(a)a “winding-up”, “bankruptcy”, “insolvency”, “administration” or “dissolution” includes, without limitation, any liquidazione, procedura concorsuale (liquidazione giudiziale, composizione negoziata per la soluzione della crisi di impresa, concordato preventivo, piano attestato di risanamento, liquidazione coatta amministrativa, amministrazione straordinaria o ristrutturazione industriale delle grandi imprese in stato d’insolvenza), accordi di ristrutturazione, cessione dei beni ai creditori or any other similar proceedings;
(b)an “insolvency proceeding” means any insolvency proceeding and/or crisis regulation instrument governed by the Italian Corporate Crisis and Insolvency Code (including, but not limited to, the negotiated composition with creditors, the simplified composition with creditors, the certified reorganization plan, the debt restructuring agreement,
simplified debt restructuring agreement, extended-effect debt restructuring agreement, moratorium agreement, restructuring plan subject to homologation, composition with creditors, pre-composition with creditors, judicial liquidation, composition with creditors in judicial liquidation procedure and forced administrative liquidation), the extraordinary administration, the extraordinary administration of large companies in difficulty or in insolvency, the transfer of the assets for the benefit of creditors under Article 1977 of the Italian Civil Code, and any other procedure pursuant to the Italian Legislative Decree No. 170/2004, as well as any procedure and/or crisis regulation instrument provided by foreign regulations and having similar purposes and/or effects to the insolvency proceedings and crisis regulation instruments as from time to time provided under Italian Law.
(c)a “receiver”, an “administrative receiver”, an “administrator” or the like includes, without limitation, a curatore, commissario giudiziale, commissario straordinario, commissario liquidatore, a liquidatore or any other person performing the same function of each of the foregoing;
(d)a “step” or “procedure” taken in connection with insolvency proceedings in respect of any person includes, without limitation, that person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), implementing a piano attestato di risanamento pursuant to Article 56 of the Italian Corporate Crisis and Insolvency Code, entering into an accordo di ristrutturazione con intermediari finanziari pursuant to Articles 61 of the Italian Corporate Crisis and Insolvency Code, filing a petition for a concordato preventivo or entering into a similar arrangement for a substantial part of its creditors;
(e)a “lease” includes, without limitations, a contratto di locazione, an affitto d’azienda and an affitto di ramo d’azienda; and
(f)a “matured obligation” includes, without limitation, any credito liquido ed esigibile and credito
scaduto;
(g)a “security interest” includes, without limitation, any pegno, ipoteca, privilegio speciale (including
the privilegio speciale created pursuant to Article 46 of the Italian Banking Law), cessione del credito in garanzia, any other garanzia reale or garanzia a prima domanda and any other garanzia personale or other transactions having the same effect as each of the foregoing;
(h)a reference to “financial assistance” means unlawful financial assistance within the meaning of Articles 2358 and/or 2474 of the Italian Civil Code as applicable; and
(i)an “attachment” includes a pignoramento.
1.10.Belgian Terms.
Without prejudice to the generality of any provision of the Loan Documents, in each Loan Document where it relates to a Belgian entity, a reference to:
(a)a “liquidator”, “receiver”, “administrator” or similar officer includes any insolventiefunctionaris/praticien de l’insolvabilité, curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, ondernemingsbemiddelaar/médiateur d’entreprise, as applicable, and sekwester/séquestre;
(b)a “Security” includes any mortgage (hypotheek/hypothèque), pledge (pand/nantissement), any mandate to grant a mortgage, a pledge or any other real security (mandaat/mandat), privilege (voorrecht/privilège), reservation of title arrangement (eigendomsvoorbehoud/droit de rétention), any real security (zakelijke zekerheid/sûreté réelle) and any transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie);
(c)a person being “unable to pay its debts” is that person being in a state of cessation of payments (staking van betaling/cessation de paiements);
(d)a “moratorium”, “composition”, “assignment” or similar arrangement includes a minnelijk akkoord met schuldeisers/accord amiable avec des créanciers or gerechtelijke reorganisatie/réorganisation judiciaire, as applicable;
(e)an “insolvency” includes any insolventieprocedure/procédure d’insolvabilité, faillissement/faillite, gerechtelijke reorganisatie/réorganisation judiciaire and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);
(f)“winding up”, “bankruptcy”, “insolvency”, “administration”, “liquidation” or “dissolution” includes any vereffening/liquidation, ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/ fermeture d’une enterprise;
(g)an “attachment” or analogous events includes any uitvoerend beslag/saisie exécutoire and
bewarend beslag/saisie conservatoire;
(h)a “merger” includes a overdracht van algemeenheid/transfert d’universalité, overdracht van bedrijfstak/transfert de branche d’activité, splitsing/scission and fusie/fusion and assimilated transaction in accordance with Articles 12:7 and 12:8, as the case may be (gelijkgestelde verrichting/opération assimilée) of the Belgian Code of Companies and Associations;
(i)the “Belgian Civil Code” the Belgian oud Burgerlijk Wetboek/ancien Code Civil as amended and/or replaced from time to time;
(j)the “Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time;
(k)a “Belgian Guarantor” means a Guarantor incorporated in Belgium.
(l)“organizational documents” means the oprichtingsakte/acte constitutif, gecoördineerde statuten/statuts and uittreksel van de Kruispuntbank van Ondernemingen/extrait de la Banque-Carrefour des Entreprises;
(m)a “subsidiary” shall be deemed to include a dochtervennootschap/filiale as defined in Article 1:15 of the Belgian Code of Companies and Associations;
(n)a “successor” means an algemene rechtsopvolger/successeur universel; and
(o)a Guarantor being “incorporated in Belgium” or “of which its jurisdiction of incorporation is Belgium”, means that such Guarantor has its statutory seat in Belgium.
1.11.Spanish Terms. Unless a contrary indication appears, a reference in this Agreement to: (i) a liquidator, a trustee in bankruptcy, a judicial custodian, a compulsory manager, a receiver, an administrative receiver and an administrator shall be construed, to the extent Spanish law is the applicable law as including administrador concursal, liquidador, administrador judicial, or any other person performing the same function as each of the foregoing; (ii) the winding up or dissolution or insolvency of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company is incorporated or any jurisdiction in which such company or corporation carries on business including the seeking of liquidation, winding up, reorganisation, bankruptcy, moratorium of payments, division, statutory merger, dissolution, administration, arrangement, adjustment, protection or relief of debtors, in relation to any Spanish company, without limitation, concurso necesario, concurso voluntario, insolvencia, disolución, liquidación; and (iii) “financial assistance” means (a) in respect to a Spanish Loan Party incorporated as a sociedad anónima, financial assistance under article 150 of the Spanish Companies Act or in any other legal provision that may substitute such article 150 or be applicable to any Spanish Loan Party in respect of such financial assistance; and (b) in respect to a Spanish Loan Party incorporated as a sociedad de responsabilidad limitada, financial assistance under article 143 of the Spanish Companies Act or in any other legal provision that may substitute such article 143 or be applicable to any Spanish Loan Party in respect of such financial assistance.
1.12.Swedish Terms. Notwithstanding and overriding any other provision of this Agreement and any other Loan Document and/or any exhibit or schedule thereto:
(a)any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent;
(b)for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Swedish Collateral Document, assign a proportionate part of the security interests granted under that Swedish Collateral Document together with a proportional part of the security interest in that Swedish Collateral Document;
(c)any security granted under a Swedish Collateral Document will be granted to the secured parties represented by the Collateral Agent;
(d)a “compromise” or “composition” with any creditor includes (a) any write-down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (b) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”);
(e)a “receiver”, “trustee” or “liquidator” includes (a) ‘rekonstruktör’ under the Swedish Company Reorganisation Act, (b) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (c) ‘likvidator’ under the Swedish Companies Act;
(f)a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any ‘delning’ implemented in accordance with Chapter 24 of the Swedish Companies Act;
(g)a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a ‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act;
(h)“gross negligence” means ‘grov vårdslöshet’ under Swedish law;
(i)a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates;
(j)an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act;
(k)in relation to this Agreement and any other Loan Document, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden (including but not limited to the Swedish Loan Parties) will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the Swedish Companies Act.
(l)Notwithstanding any other provisions in this Agreement and/or the other Loan Documents, the release of any perfected Liens (or any Liens purported to be perfected) created by a Swedish Collateral Document (“Swedish Collateral”) will always be subject to the prior written consent of the Collateral Agent (acting in its sole discretion but in accordance with the applicable Swedish Collateral Document and Loan Document). Each Secured Party authorizes and directs the Collateral Agent to release Swedish Collateral as provided in Section 11.9 of this Agreement (but in accordance with the applicable Swedish Collateral Document and Loan Document) without notification or further reference to the Secured Parties. This provision supersedes any conflicting provision in this Agreement and/or the other Loan Documents.
1.13.Quebec Interpretative Provisions. For purposes of the interpretation or construction of this Agreement pursuant to the laws of the Province of Quebec, for purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Security Document) and for all other purposes pursuant to which the interpretation or construction of any other Security Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, a “reservation of ownership”, “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the PPSA shall be deemed to include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs in favour of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”, (p) “easement” shall be deemed to include “servitude”, (q) “priority” shall be deemed to include “prior claim” or “rank”, as applicable, (r) “survey” shall be deemed to include “certificate of location and plan”, (s) “fee simple title” and “fee title” shall be deemed to include “right of ownership”, (t) “foreclosure” shall be deemed to include “the exercise of a hypothecary right”, (u) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (v) “lease” for personal or movable property shall be deemed to include a “contract of leasing (crédit-bail)” and (x) “deposit account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Quebec.
1.14.French Terms. In this Agreement, where it relates to the French Loan Party:
(a)“gross negligence” means “faute lourde”;
(b)a “guarantee” means any type of “sûreté personnelle”;
(c)“merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code;
(d)a “security interest” includes any type of security (sûreté réelle) and transfer by way of security;
(e)a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f)“trustee, fiduciary and fiduciary duty” has in each case the meaning given to such term under any applicable law;
(g)“willful misconduct” means “dol”;
(h)a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code;
(i)a “suspension of payments,” a “moratorium of any indebtedness,” a “winding-up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code;
(j)a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(k)a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refer to any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur”, "mandataire judiciaire", "commissaire à l'exécution du plan", "mandataire à l'exécution de l'accord", or similar officer; and
(l)a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
ARTICLE II
THE CREDITS
2.1.Commitments.
(a)The Term Loans.
(iv)Each Lender severally and not jointly agrees, on the terms and conditions set forth in this Agreement, to make to the Borrower on the Closing Date, a loan in a single draw denominated in Dollars in an aggregate amount not to exceed the amount of such Lender’s Commitment. Term Loans may be Floating Rate Loans or Term Benchmark Loans, as further provided herein.
(v)Amounts borrowed under this Section 2.1(a) and repaid or prepaid may not be reborrowed. 2.1.Repayment of Loans; Evidence of Debt.
2.2.1[Reserved].
2.2.2[Reserved].
2.2.3Term Loans. The Borrower unconditionally promises to repay the Term Loans borrowed by it to the Administrative Agent for the account of each Lender in one final installment in the amount of the relevant Term Loans then outstanding, due and payable on the Term Loan Maturity Date.
2.2.4The Borrower hereby further agrees to pay to the Administrative Agent for the account of each Lender, interest on the unpaid principal amount of the Loans made to it from time to time outstanding until payment thereof in full at the rates per annum, and on the dates, set forth in Section 2.8. 2.2.5The books and records of the Administrative Agent and of each Lender shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Borrower therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain any such books and records or any error therein, shall not in any manner affect the obligation of the Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in accordance with the terms of this Agreement.
2.2.6The Borrower agrees that, upon the request to the Administrative Agent by any Lender from time to time and the subsequent request to the Borrower by the Administrative Agent, the Borrower will execute and deliver to such Lender promissory notes evidencing the Loans of any such requesting Lender, substantially in the form of Exhibit C attached hereto with appropriate insertions as to date and principal amount (each, a “Note”); provided that the delivery of such Notes shall not be a condition precedent to the Closing Date or any Advance.
2.2.Procedures for Borrowing Loans. To request a Loan under the Credit Facilities (which such Loan shall only be required to be made on a Business Day), the Borrower shall give the Administrative Agent notice (which notice may be conditional but must be received by the Administrative Agent prior to 11:00 a.m., New York City time three U.S. Government Securities Business Days prior to the requested Borrowing Date if all or any part of the requested Loans are to be Term Benchmark Loans or two Business Day prior to the requested Borrowing Date if all or any part of the requested Loans are to be Floating Rate Loans) specifying in each case (each such notice, a “Borrowing Notice”) (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) [reserved], (iv) whether such Loan is a Floating Rate Loan or a Term Benchmark Loan and (v) if applicable, the length of the initial Interest Period therefor. Each Advance shall be in Dollars. Each such Advance shall be in a minimum amount of $5,000,000 units or a whole multiple of $1,000,000 in excess thereof or such other amounts as may be agreed upon between the Borrower and the Administrative Agent. Upon receipt of any such notice from the Borrower, the Administrative Agent shall promptly notify the Lenders with respect to such Advance. Not later than 1:00 p.m., New York City time, on the requested Borrowing Date, each Lender shall make an amount equal to its Pro Rata Share of the principal amount of such Loans requested to be made on such Borrowing Date available to the Administrative Agent in immediately available or other same day funds. The amounts made available by each Lender will then be made available to the Borrower at the funding office for the Borrower and in Dollars.
2.3.Termination or Reduction. The Commitments shall terminate and be reduced to zero upon the making of the Term Loans on the Closing Date. For the avoidance of doubt, the Commitments in respect of the Credit Facilities shall be permanently reduced by the amount of any Term Loans made hereunder.
2.4.Commitment, Ticking and other Fees.
(a)The Borrower agrees to pay (or cause to be paid) to the Administrative Agent such other fees as separately agreed to in writing by the Borrower and such Persons and/or their applicable Affiliates.
(b)The amount of the ticking fee payable to the Lenders pursuant to the Transaction Support Agreement to the Lenders on the Closing Date is $631,233, and shall be added to the amount of the Term Loans outstanding on the Closing Date for the ratable account of each Lender on the Closing Date.
2.1.Optional and Mandatory Principal Payments.
2.6.1The Borrower may at any time and from time to time prepay Floating Rate Loans, in whole or in part, subject to Section 2.6.3, upon at least three Business Days’ notice to the Administrative Agent, specifying the date and amount of prepayment; provided that such prepayment obligation may be conditioned on the occurrence of any subsequent event. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayment of Floating Rate Loans shall be in a minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in excess thereof.
2.6.2The Borrower may at any time and from time to time prepay, subject to Section 2.6.3 (together with payment of any amount payable pursuant to Section 3.3), its Term Benchmark Loans in whole or in part, upon at least three Business Days’ notice to the Administrative Agent specifying the date and amount of prepayment; provided that such prepayment obligation may be conditioned on the occurrence of any subsequent event. Partial prepayments of Term Benchmark Loans shall be in a minimum aggregate principal amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof, or such lesser principal amount as may equal the outstanding Term Benchmark Loans or such lesser amount as may be agreed to by the Administrative Agent. 2.6.3(a) [Reserved].
(a)[Reserved].
(b)If at any time following the Closing Date, any Prepayment Premium Trigger Event occurs, (i) if such event is a Make Whole Trigger Event, the Borrower shall pay a premium to the Administrative Agent, for the ratable account of each of the applicable Term Lenders, in an amount equal to (A) prior to December 29, 2024, the Make Whole Amount and (B) thereafter, 5.0% of the aggregate principal amount of Term Loans so repaid, prepaid or required to be repaid and (ii) otherwise, (A) if such Prepayment Premium Trigger Event is triggered solely by any Change of Control, or transformative acquisition or Disposition or similar transaction (or series of related transactions), in each case, involving all or substantially all of the assets of the Company, 5.0% of the aggregate principal amount of Term Loans so repaid, prepaid or required to be repaid and (B) if such Prepayment Premium Trigger Event is trigger solely by an Asset Sale Prepayment Event that does not involve all or substantially all of the assets of the Company, 1.0% of the aggregate principal amount of Term Loans so repaid, prepaid or required to be repaid (clauses (i) and (ii) collectively, the “Prepayment Premium”).
Notwithstanding the foregoing, and for the avoidance of doubt, no such Prepayment Premium under this Section 2.6.3(c) shall be payable in connection with the mandatory prepayment of Term Loans from a Recovery Event pursuant to Section 2.6.5(b).
(c)Payment of any Prepayment Premium hereunder constitutes liquidated damages (and does not constitute unmatured interest, a penalty or an otherwise unenforceable or invalid obligation), and the actual amount of damages to the Term Lenders as a result of the relevant triggering event, prepayment or repayment would be impracticable and extremely difficult to ascertain. Accordingly, the Prepayment Premium hereunder is provided by mutual agreement of the Borrower, the Term Lenders and the Administrative Agent as a good faith, reasonable estimation and calculation of such actual lost profits and/or other actual damages of the Term Lenders as a result of such relevant triggering event, prepayment or repayment. Without limiting the generality of the foregoing, it is understood and agreed that upon the occurrence of any Prepayment Premium Trigger Event, the Prepayment Premium shall be automatically and immediately due and payable as though any prepaid, repaid or accelerated Term Loans were voluntarily prepaid as of such date and shall constitute part of the Obligations secured by the Collateral, and interest shall accrue on the full principal amount of such Obligations. The Prepayment Premium shall also be automatically and immediately due and payable if the Term Loans are satisfied or released by foreclosure (whether by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other similar means, or if the Term Loans are reinstated pursuant to section 1124 of the Bankruptcy Code of the United States of America or similar provisions under Debtor Relief Laws. THE BORROWER HEREBY EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR OTHER LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING
PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH EVENTS. The Borrower and the Loan Parties expressly agree (to the fullest extent it may lawfully do so) that with respect to the Prepayment Premium payable under the terms of this Agreement: (i) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business parties, ably represented by counsel; (ii) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (iii) there has been a course of conduct between the Term Lenders and the Loan Parties giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (iv) the Loan Parties shall be estopped hereafter from claiming differently than as agreed to in this paragraph. The Loan Parties expressly acknowledge that their agreement to pay the Prepayment Premium as herein described is a material inducement to the Term Lenders to provide the Commitments and make the Term Loans. In the event the Prepayment Premium is determined not to be due and payable by order of any court of competent jurisdiction, including, without limitation, by operation of Debtor Relief Laws, despite becoming due and payable hereunder, such Prepayment Premium shall nonetheless constitute Obligations under this Agreement for all purposes hereunder.
2.1.1[Reserved].
2.1.2Mandatory Prepayment of Term Loans.
(a)On and after the Closing Date, if any Indebtedness shall be issued or incurred by the Company or any Subsidiary (excluding any Indebtedness incurred in accordance with Section 6.18), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9. (b)On and after the Closing Date, if the Company or any Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) then 100% of such Net Cash Proceeds less any Reinvestment Deferred Amount (if applicable) shall be applied on or prior to the fifth Business Day after such receipt (or in the case of an Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) in an amount less than or equal to $25,000,000, on or prior to the date five Business Days after the date the financial statements for the fiscal quarter in which the aggregate amount of Net Cash Proceeds for all such Asset Sale Prepayment Events or Recovery Events for the four consecutive fiscal quarter period ending with such fiscal quarter exceed $25,000,000 are required to be delivered pursuant to Section 6.1(i) or (ii)), toward the prepayment of the Term Loans as set forth in Section 2.6.9; provided that, notwithstanding the foregoing, no later than each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.6.9. Prepayments from, and, without duplication, of amounts equal to, Net Cash Proceeds of any Asset Sale Prepayment Event or Recovery Event by a Foreign Subsidiary (to the extent otherwise required) will be limited to the extent (x) the repatriation of Foreign Subsidiaries’ funds to fund such prepayments is prohibited, restricted or delayed by applicable laws or
(y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment could reasonably be expected to result in material adverse tax consequences to the Company and its Subsidiaries. All mandatory prepayments are subject to permissibility under (a) in the case of Foreign Subsidiaries, local law restrictions (such as restrictions relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Subsidiaries) and (b) with respect to non-Wholly Owned Subsidiaries, organizational document restrictions, to the extent not created in contemplation of such prepayments. The non-application of any such mandatory prepayment amounts in compliance with the foregoing provisions of this paragraph will not constitute an Unmatured Default or Default and such amounts shall be available for working capital purposes of the Company and its Subsidiaries. The Company will undertake to use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant payment. Notwithstanding the foregoing, any prepayments made after application of
the above provisions shall be net of any costs, expenses or taxes incurred by the Company and its Subsidiaries or any of its Affiliates or equity partners and arising as a result of compliance with this paragraph.
2.1.3Each prepayment pursuant to this Section 2.6 shall be accompanied by accrued and unpaid interest and premium and the Prepayment Premium, if any, on the amount prepaid to the date of prepayment and any amounts payable under Section 3.3 in connection with such payment. Each conversion (other than a conversion of a Floating Rate Loan to a Term Benchmark Loan) pursuant to Section 2.7 shall be accompanied by accrued and unpaid interest, if any, on the amount converted to the date of conversion and any amounts payable under Section 3.3 in connection with such conversion. 2.1.4If two different Types of U.S. Dollar Loans of a particular Class are outstanding, the applicable prepayment pursuant to this Section 2.6 shall be applied first to prepay Floating Rate Loans and second to prepay Term Benchmark Loans then outstanding in such order as the Borrower may direct. 2.1.5[Reserved].
2.1.6All prepayments of the Term Loans shall be applied ratably among the outstanding Classes of Term Loans according to the respective outstanding principal amounts thereof.
2.1.7[Reserved].
2.1.8Notwithstanding anything in Section 2.6, any Term Lender may elect not to accept its pro rata portion of any amount prepaid under 2.6.5 pursuant to procedures reasonably satisfactory to the Administrative Agent, and the Company may prepay the 2025 Notes, the New Term Loan Facility or the New 2L Notes, and in each case, any Permitted Refinancing Indebtedness in respect thereof from any such declined amounts. 2.1.9[Reserved].
2.1.Conversion and Continuation of Outstanding Advances. Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Term Benchmark Advances. Each Term Benchmark Advance shall continue as a Term Benchmark Advance until the end of the then applicable Interest Period therefor, at which time such Term Benchmark Advance shall be automatically converted into a Floating Rate Advance, unless the Borrower shall have given the Administrative Agent a Conversion/Continuation Notice requesting that, at the end of such Interest Period, such Term Benchmark Advance continue as a Term Benchmark Advance for the same or another Interest Period. Subject to the terms hereof, the Borrower may elect from time to time to convert all or any part of an Advance of any Type into any other Type or Types of Advance (subject to, in the case of conversion of any Term Benchmark Advance other than on the last day of the Interest Period applicable thereto, payment of any amounts payable under Section 3.3 in connection therewith). The Borrower shall give the Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each conversion of an Advance or continuation of a Term Benchmark Advance not later than 11:00 a.m. (New York City time) at least one Business Day, in the case of a conversion into a Floating Rate Advance, or three U.S. Government Securities Business Days, in the case of a conversion into or continuation of a Term Benchmark Advance, prior to the date of the requested conversion or continuation, specifying:
(a)the requested date, which shall be a Business Day, of such conversion or continuation,
(b)the aggregate amount and Type of the Advance which is to be converted or continued, and
(c)the amounts and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Term Benchmark Advance, the duration of the Interest Period applicable thereto.
2.1.Interest Rates, Interest Payment Dates; Interest and Fee Basis.
(a)Each Floating Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Loan is made or is converted from a Term Benchmark Loan into a Floating Rate Loan pursuant to Section 2.7 to but excluding the date it becomes due or is converted into a Term Benchmark Loan pursuant to Section 2.7 hereof, at a rate per annum equal to the Floating Rate for such day. Each Term Benchmark Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Term Benchmark Rate determined for such Interest Period. (b)Interest accrued on each Floating Rate Advance shall be payable on each Payment Date, commencing with the first such date to occur after the Closing Date and at maturity. Interest accrued on each Term Benchmark Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Term Benchmark Advance is repaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each Term Benchmark Advance having an Interest Period longer than three months shall also be payable on the last day of each three- month interval during such Interest Period.
(c)Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to 1:00 p.m. (local time) at the place of payment. If any payment of principal of or interest or fee on an Advance shall become due on a day which is not a Business Day, except as otherwise provided in the definition of Interest Period, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.
(d)All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period such interest or fee is payable over a year comprised of 360 days or, in the case of Floating Rate Loans based on the Prime Rate, 365/366 days.
(e)Changes in the rate of interest on that portion of any Advance maintained as a Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each Term Benchmark Advance shall bear interest on the outstanding principal amount thereof from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such Term Benchmark Advance.
(f)For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Agreement and the other Loan Documents (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
(g)If any provision of this Agreement or other Loan Document would oblige any Canadian Loan Party to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Lender of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Lender shall have received an amount in excess of the maximum permitted by section 347 of the Criminal Code (Canada), the applicable Canadian Loan Party shall be entitled to obtain reimbursement from such Lender in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such Lender to such Canadian Loan Party.
2.1.Rates Applicable After Default. Notwithstanding anything to the contrary contained in this Agreement, during the continuance of a Default the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued (after the expiration of the then current Interest Period) as a Term Benchmark Advance. Upon and during the continuance of any Default under Section 7.2 with respect to principal, interest or fees, the Required Lenders may, at their option, by notice to the Borrower (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders as to changes and interest rates) declare that (i) each Term Benchmark Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum, and (ii) each Floating Rate Advance and any other amount due under this Agreement shall bear interest at a rate per annum equal to the Floating Rate otherwise applicable to Floating Rate Loans plus 2% per annum, provided that, upon and during the continuance of any acceleration for any reason of any of the Obligations, the interest rate set forth in clauses (i) and (ii) shall be applicable to all Advances without any election or action on the part of the Administrative Agent or any Lender.
2.2.Pro Rata Payment, Method of Payment; Proceeds of Collateral.
(a)Each borrowing of a Class of Loans from the Lenders thereunder shall be made pro rata according to the Pro Rata Shares of the applicable Lenders of such Class in effect on the date of such borrowing. Except as otherwise provided in this Agreement, each payment on account of any premium shall be allocated by the Administrative Agent among the Lenders in accordance with their respective Pro Rata Shares. Except as otherwise provided in this Agreement, each payment (including each prepayment) by the Borrower hereunder on account of principal, interest, commitment or ticking fees on its Loans shall be allocated by the Administrative Agent pro rata to the Lenders according to their respective outstanding Pro Rata Shares. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent for the account of the Lenders at the applicable payment office of the Administrative Agent for such payment specified from time to time in writing by the Administrative Agent to the Borrower by 1:00 P.M. (local time) on the date when due. Each payment delivered to the Administrative Agent for the account of any
Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds received by the Administrative Agent. All payments hereunder shall be in Dollars.
(b)Application of Proceeds of Collateral and Guaranty. Subject to the terms of any Intercreditor Agreement, all amounts received under any Guaranty and all proceeds received by the Administrative Agent and/or Collateral Agent from the sale or other liquidation of the Collateral when a Default exists shall first be applied as payment of the accrued and unpaid fees of the Administrative Agent and/or Collateral Agent hereunder and then to all other unpaid or unreimbursed Obligations (including reasonable attorneys’ fees and expenses in accordance with Section 10.6) owing to (a) the Administrative Agent in its capacity as Administrative Agent and (b) the Collateral Agent in its capacity as Collateral Agent, and then any remaining amount of such proceeds shall be distributed as follows: (vi)first, to the Secured Parties, pro rata in accordance with the respective unpaid amounts of Obligations then owing, until all the Obligations then owing have been paid and satisfied in full or cash collateralized;
(vii)second, to the Person entitled thereto as directed by the Borrower or as otherwise determined by applicable law or applicable court order.
(c)Noncash Proceeds. Notwithstanding anything contained herein to the contrary, if the Collateral Agent shall ever acquire any Collateral through foreclosure or by a conveyance in lieu of foreclosure or by retaining any of the Collateral in satisfaction of all or part of the Obligations or if any proceeds of Collateral received by the Collateral Agent to be distributed and shared pursuant to this Section 2.10 are in a form other than immediately available funds, the Collateral Agent shall not be required to remit any share thereof under the terms hereof and the Secured Parties shall only be entitled to their undivided interests in the Collateral or noncash proceeds as determined by paragraph (b) of this Section 2.10. The Secured Parties shall receive the applicable portions (in accordance with the foregoing paragraph (b)) of any immediately available funds consisting of proceeds from such Collateral or proceeds of such noncash proceeds so acquired only if and when received by the Collateral Agent in connection with the subsequent disposition thereof. While any Collateral or other property to be shared pursuant to this Section is held by the Collateral Agent pursuant to this paragraph (c), the Collateral Agent shall hold such Collateral or other property for the benefit of the Secured Parties and all matters relating to the management, operation, further disposition or any other aspect of such Collateral or other property shall be resolved by the agreement of the Required Lenders. (d)Return of Proceeds. If at any time payment, in whole or in part, of any amount distributed by the Administrative Agent or the Collateral Agent hereunder is rescinded or must otherwise be restored or returned by the Administrative Agent or the Collateral Agent as a preference, fraudulent conveyance, or otherwise under any bankruptcy, insolvency, or similar law, then each Person receiving any portion of such amount agrees, upon demand, to return the portion of such amount it has received to the Administrative Agent or the Collateral Agent (as applicable).
(e)Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
2.1.Telephonic Notices. The Borrower hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any Person or Persons the Administrative Agent or any Lender reasonably and in good faith believes to be an Authorized Officer. The Borrower agrees to deliver promptly to the Administrative Agent a written confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.
2.2.Notification of Advances, Interest Rates, Prepayments and Commitment Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Term Benchmark Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.3.Lending Installations. Each Lender may, subject to Section 3.5, make and book its Loans at any Lending Installation(s) selected by such Lender and may change its Lending Installation(s) from time to time. All terms of this Agreement shall apply to any such Lending Installation(s) and the Notes, if any, shall be deemed held by each Lender for the benefit of such Lending Installation(s). Each Lender may, by written or telex notice to the Administrative Agent and the Borrower, designate one or more Lending Installations which are to make and book Loans and for whose account Loan payments are to be made.
2.4.Non-Receipt of Funds by the Administrative Agent. Unless the Borrower or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (a) in the
case of a Lender, the proceeds of a Loan or (b) in the case of the Borrower, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Borrower, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest and premium, if any, thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for the first five days and the interest rate applicable to the relevant Loan for each day thereafter or (ii) in the case of payment by the Borrower, the interest rate applicable to the relevant Loan.
2.5.Italian Usury Law.
(a)The rate of interest applicable to each Loan guaranteed by an Italian obligor under this Agreement (including the relevant component of any applicable fee and expense) determined as of the date of execution of this Agreement is considered in good faith by each of the parties to be in compliance with Law No. 108 of 7 March 1996 as amended (the “Italian Usury Law”); and
(b)In any event, if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest applicable to a Loan guaranteed by an Italian obligor or the default rate of interest (if due at such time from an Italian obligor) at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the obligations of the Italian obligor, as guarantor and payor of the relevant interest rate or default rate, shall immediately be reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not.
2.1.[Reserved].
2.2.Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)the Commitments and Aggregate Outstandings of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 8.2), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders (other than as a result of such Defaulting Lender having a greater or lesser Aggregate Outstandings or Commitments) or which increases the amount of any Commitment of such Defaulting Lender, forgives any principal amount of any Loans owing to such Defaulting Lender or any interest (other than default interest) or fees owing to such Defaulting Lender previously accrued at the time of such forgiveness or extends the termination date of such Commitment or extends the final maturity beyond the then maturity date of any Loan Note with respect to such Defaulting Lender shall require the consent of such Defaulting Lender; and (b)any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to Section 2.17 but excluding Section 3.5) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable Requirements Of Law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iii) third, if so determined by the Administrative Agent and the Borrower, held in such account as cash collateral for future obligations of the Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Borrower or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Borrower or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (v) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a prepayment of the principal amount of any Loans, such payment shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans any Defaulting Lender. In the event that the Administrative Agent and the Borrower each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, such Lender shall cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
2.1.Guaranties.
(a)[Reserved].
(b)On and after the Closing Date, within 45 days (or such longer period of time contemplated by the Collateral and Guarantee Requirements or as the Administrative Agent (acting at the direction of the Required Lenders) shall agree) after delivery (or date of required delivery) of each set of applicable financial statements pursuant to 6.1(i) and (ii) and with respect to any Person that becomes a Subsidiary (other than an Excluded Subsidiary) after the Closing Date, within 45 days of such Person becoming a Subsidiary (other than an Excluded Subsidiary), the Company shall take all actions (if any) required to be taken to satisfy the Collateral and Guarantee Requirements with respect to (i) each Wholly Owned Domestic Subsidiary (other than an Excluded Subsidiary) and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded Indebtedness of (A) any Loan Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000), the assets of each such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party such that
(i) all Wholly Owned Domestic Subsidiaries (other than Excluded Subsidiaries) and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded Indebtedness of (A) any Loan Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000) are Guarantors as of such date.
(c)In connection with the delivery of any such Guaranties and Security Documents and the satisfaction of the Collateral and Guarantee Requirements, the Company shall provide such other documentation to the Administrative Agent and Collateral Agent, including, without limitation, one or more opinions of counsel reasonably satisfactory to the Administrative Agent and Collateral Agent (acting at the direction of the Required Lenders), corporate documents and resolutions, which in the reasonable opinion of the Administrative Agent and Collateral Agent (acting at the direction of the Required Lenders) is necessary or advisable in connection therewith. For the avoidance of doubt, notwithstanding the above, for so long as a Subsidiary of the Company guarantees the 2025 Notes, New 2L Notes, New Term Loans, Existing Term Loan Facility and/or the ABL Facility or any other Indebtedness for borrowed money subject to the covenant set forth in Section 6.28 (or in each case any refinancing, renewal or replacement thereof), such Subsidiary will be required to guaranty the Obligations. 2.1.[Reserved].
2.2.Alternate Rate of Interest.
(a)Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.20, if:
(viii)the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a Term Benchmark Advance, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for such Interest Period; or
(ix)the Administrative Agent is advised by the Required Lenders that prior to the commencement of any Interest Period for a Term Benchmark Advance, the Adjusted Term SOFR Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Conversion/Continuation Notice in accordance with the terms of Section 2.7, any Conversion/Continuation Notice that requests the conversion of any Advance to, or continuation of any Advance as, a Term Benchmark Advance shall instead be deemed to be a Conversion/Continuation Notice for a Floating Rate Advance; provided that if the circumstances giving rise to such notice affect only one Type of Advance, then all other Types of Advance shall be permitted. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.20(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrower delivers a new Conversion/Continuation Notice in accordance with the terms of Section 2.7, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Floating Rate Loan on such day.
(b)Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement
or any other Loan Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c)Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d)The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders)
pursuant to this Section 2.20, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to
this Section 2.20.
(e)Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent (acting at the direction of the Required Lenders) in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f)Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a conversion to or continuation of Term Benchmark Loans to converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a continuation of a Term Benchmark Advance into a request for a conversion to a Floating Rate Borrowing. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate. Furthermore, if any Term Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark
Replacement is implemented pursuant to this Section 2.20, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Floating Rate Loan on such day.
2.1.[Reserved].
2.2.Loan Modification Offers.
2.22.1The Borrower may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, make one or more offers (each, a “Loan Modification Offer”) to all (and not fewer than all) the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “Affected Class”) to make one or more Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent (acting at the direction of the Required Lenders) and reasonably acceptable to the Borrower. Such notice shall set forth (i) the terms and conditions of the requested Loan Modification Offer and (ii) the date on which such Loan Modification Offer is requested to become effective. Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable
Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made. With respect to all Permitted Amendments consummated by the Borrower pursuant to this Section 2.22, any Loan Modification Offer, unless contemplating a maturity date already in effect hereunder pursuant to a previously consummated Permitted Amendment, must be in a minimum amount of $25,000,000 (or such lesser amount as may be approved by the Administrative Agent (acting at the direction of the Required Lenders)); provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Permitted Amendment that a minimum amount (to be determined and specified in the relevant Loan Modification Offer in the Borrower’s sole discretion and which may be waived by the Borrower) of Commitments or Loans of any or all Affected Classes be extended. If the aggregate principal amount of Commitments or Loans of any Affected Class in respect of which Lenders shall have accepted the relevant Loan Modification Offer shall exceed the maximum aggregate principal amount of Commitments or Loans of such Affected Class offered to be extended by the Borrower pursuant to such Loan Modification Offer, then the Commitments and Loans of such Lenders shall be extended ratably up to such maximum amount based on the relative principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Loan Modification Offer. 2.1.10Permitted Amendments shall be effected pursuant to a Loan Modification Agreement executed and delivered by the Borrower, each Accepting Lender and the Administrative Agent; provided that no Permitted Amendment shall become effective unless (i) the Borrower shall have certified that (a) no Unmatured Default or Default shall have occurred and be continuing on the date of effectiveness thereof and (b) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (x) in the case of the representations and warranties qualified as to materiality, in all respects and (y) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (ii) the Borrower shall have delivered, or agreed to deliver by a date following the effectiveness of such Permitted Amendment reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders), to the Administrative Agent and the Collateral Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to Mortgages or other Security Documents, in each case to the extent applicable) as shall reasonably be requested by the Administrative Agent or the Collateral Agent (acting at the direction of the Required Lenders) in connection therewith and
(iii) any applicable Minimum Extension Condition shall be satisfied (unless waived by the Borrower). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each Loan Modification Agreement may, without the consent of any Lender other than the applicable Accepting Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.22, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new Class of loans and/or commitments hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments).
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
3.1.[Reserved].
3.2.Increased Costs.
(m)If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender;
(ii)impose on any Lender or the applicable offshore interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender; or
(iii)subject any Recipient to any Taxes on its loans, loan principal, commitments, or other obligations hereunder, or its deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified Taxes; and (B) Excluded Taxes);
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan or of maintaining its obligation to make any such Loan or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder, whether of principal, interest or otherwise, then the Borrower will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(n)If any Change in Law regarding capital requirements or liquidity has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a
consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(o)A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 3.2 shall be delivered to the Borrower and shall be conclusive absent manifest error. Subject to paragraph (d) of this Section 3.2, the Borrower shall pay such Lender the amount shown as due on any such certificate, absent manifest error, within 30 days after receipt thereof. (p)Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.2 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section 3.2 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof. 3.3.Break Funding Payments. In the event of (a) the payment of any principal of any Term Benchmark Loan other than on the last day of an Interest Period applicable thereto (including as a result of a Default), (b) the conversion of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Term Benchmark Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked and is revoked), or (d) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 3.5, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.3 shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
3.4.Withholding of Taxes; Gross-Up. (a) Each payment by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, unless such deduction or withholding is required by applicable law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so required to deduct or withhold Taxes, then such Withholding Agent may so deduct or withhold and shall timely pay the full amount of Taxes deducted or withheld to the relevant Governmental Authority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Party shall be increased as necessary so that, net of such deduction or withholding (including such deduction or withholding applicable to additional amounts payable under this Section 3.4), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law or timely reimburse the Administrative Agent or the Collateral Agent for the payment of any Other Taxes they were required to pay by law or by a relevant Governmental Authority in respect of this Agreement.
(c)Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d)Indemnification by the Loan Parties. Each applicable Loan Party shall indemnify each Recipient for the full amount of any Indemnified Taxes that are paid or payable by such Recipient in connection with any Loan Document (including Indemnified Taxes imposed or asserted on amounts paid or payable under this Section 3.4(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 3.4(d) shall be paid within 10 days after demand therefor. A certificate as to the amount of such payment or liability delivered to the applicable Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent and the Collateral Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent or the Collateral Agent in connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The
indemnity under this Section 3.4(e) shall be paid within 10 days after demand therefor. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent and the Collateral Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent or the Collateral Agent (as applicable) to the Lender from any other source against any amount due to the Administrative Agent or the Collateral Agent (as applicable) under this paragraph (e). (f)Status of Lenders. (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under any Loan Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.4(f)(ii)(A) through (E) and Section 3.4(f)(iii) below) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender. (ii)Without limiting the generality of the foregoing, if the Borrower is a U.S. Person, each Lender shall, if it is legally eligible to do so, deliver to the Company and the Administrative Agent (in such number of copies reasonably requested by the Company and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto, duly completed and executed copies of whichever of the following is applicable:
(A)in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B)in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Loan Document, IRS Form W-8BEN or W- 8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;
(C)in the case of a Non-U.S. Lender for whom payments under this Agreement constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W- 8ECI;
(D)in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN or W-8BEN-E, as applicable, and (2) a certificate substantially in the form of Exhibit D attached hereto (a “U.S. Tax Certificate”) to the effect that such Lender is not
(a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;
(E)in the case of a Non-U.S. Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership or a participating Lender) (1) an IRS Form W-8IMY on behalf of itself and
(2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) and in paragraph (f)(iii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or (F)in the case of a Non-U.S. Lender, any other form prescribed by applicable law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax together with such supplementary documentation necessary to enable the Company or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld or deducted.
(iii)If a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the
Company and the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine that such Lender has or has not complied with such Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 3.4(f)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. (iv)Without limiting the generality of the foregoing, in the case of a Non-Spanish Lender, as soon as reasonably practicable after the date on which it becomes a Lender, but before any payment of interest is due or made by a Spanish Guarantor, whichever comes first, such Lender shall deliver to such Spanish Guarantor through the Company and the Administrative Agent a certificate of tax residence (or the specific form required under the relevant Spanish Treaty) duly issued by the competent tax authorities of its country of tax residence evidencing such Lender as resident for tax purposes in that country and, if the Lender is a Spanish Treaty Lender, accrediting such Spanish Treaty Lender as tax resident in the relevant jurisdiction within the meaning of the relevant Spanish Treaty. Each Non-Spanish Lender shall be required to deliver a new certificate of tax residence upon expiry of the existing certificate in accordance with the applicable Spanish legislation.
Each Lender agrees that if any form or certification it previously delivered becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
(g)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.4 (including additional amounts paid pursuant to this Section 3.4), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.4 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnified party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.4(g), in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 3.4(g) if such payment would place such indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 3.4(g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person. (h)Survival. Each party’s obligations under this Section 3.4 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations under any Loan Document. (i)Mitigation Obligations of Loan Parties. If any payment to be made by a Guarantor would be subject to a Tax that is not an Indemnified Tax and such payment, if made by one or more other Guarantor, would not be subject to such Tax, the Borrower shall use commercially reasonable best efforts to cause the payment to be made by one of such other Guarantors in order to reduce or eliminate the non-Indemnified Taxes applicable to such payment.
3.5.Mitigation Obligations; Replacement of Lenders.
(q)If any Recipient requests compensation under Section 3.2, or if a Loan Party is required to pay any additional amount to any Recipient or any Governmental Authority for the account of any Recipient pursuant to Section 3.4 or if any amount payable under a Loan Document by a Loan Party becomes not deductible from that Loan Party’s taxable income for French tax purposes by reason of that amount being (i) paid or accrued to a Secured Party incorporated, domiciled, established or acting through a lending office situated in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of or for the benefit of that Secured Party in a financial institution situated in a Non-Cooperative Jurisdiction, then such Recipient shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Recipient, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.2 or 3.4, as the case may be, in the future and (ii) would not subject such Recipient to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Recipient. The Loan Party hereby agrees to pay all reasonable costs and expenses incurred by any Recipient in connection with any such designation or assignment including the $3,500 fee contemplated by Section 13.1(b). (r)If any Lender (i) shall become affected by any of the changes or events described in Section 3.2 or 3.4 and the Loan Party is required to pay additional amounts or make indemnity payments with respect to the Lender thereunder, (ii) is a Defaulting Lender, (iii) [reserved], or (iv) has failed to consent to a proposed amendment, waiver, discharge or termination which pursuant to the terms of Section 8.2 or any other provision of any Loan Document requires
the consent of all Lenders or all affected Lenders (or as applicable, with respect to a Class, all Lender or all affected Lenders of such Class) and with respect to which the Required Lenders (or, as applicable with respect to a Class, the Lenders that would constitute the Required Lenders if such Class were the only Class outstanding hereunder) shall have granted their consent (any such Lender being hereinafter referred to as a “Departing Lender”), then in such case, the Loan Party may, upon at least five Business Days’ notice to the Administrative Agent and such Departing Lender (or such shorter notice period specified by the Administrative Agent), designate a replacement lender reasonably acceptable to the Administrative Agent (a “Replacement Lender”) to which such Departing Lender shall, subject to its receipt (unless a later date for the remittance thereof shall be agreed upon by the Loan Party and the Departing Lender) of all amounts then owed to such Departing Lender under Sections 3.2 or 3.4, if any, assign all (but not less than all) of its interests, rights, obligations, Loans and Commitments hereunder; provided, that the Departing Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Replacement Lender (to the extent of such outstanding principal and accrued interest and fees) or the Loan Party (in the case of all other amounts). Upon any assignment by any Lender pursuant to this Section 3.5 becoming effective, the Replacement Lender shall thereupon be deemed to be a “Lender” for all purposes of this Agreement (unless such Replacement Lender was, itself, a Lender prior thereto) and such Departing Lender shall thereupon cease to be a “Lender” for all purposes of this Agreement and shall have no further rights or obligations hereunder (other than pursuant to Section 3.2 or 3.4 and Section 10.6). (s)Notwithstanding any Departing Lender’s failure or refusal to assign its rights, obligations, Loans and Commitments under this Section 3.5, the Departing Lender shall cease to be a “Lender” for all purposes of this Agreement and the Replacement Lender shall be substituted therefor upon payment to the Departing Lender by the Replacement Lender of all amounts set forth in paragraph (b) of Section 3.5 without any further action of the Departing Lender. ARTICLE IV CONDITIONS PRECEDENT
4.1.Closing Date. This Agreement shall become effective and the obligations of the Lenders to make the Term Loans hereunder shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.2):
(t)The Administrative Agent shall have received (i) a counterpart of this Agreement signed by the Company and the Borrower and the Lenders, or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission of a signature page of this Agreement and the Guaranty) that such party has signed a counterpart of such the Agreement.
(u)The Administrative Agent shall have received copies of the articles of incorporation, partnership agreement or similar organizational documents of the Borrower and each Guarantor as of the Closing Date, together with all amendments thereto, and a certificate of good standing or similar governmental evidence of corporate existence (to the extent applicable), certified by the Secretary or an Assistant Secretary or other duly authorized director or representative of the Borrower or such Guarantor, as the case may be, or of the Company.
(v)The Administrative Agent shall have received copies of the by-laws or other similar operating agreement (to the extent applicable) and resolutions of the shareholders and/or Board of Directors’ resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent), of the Borrower and each Guarantor (in respect of any Guarantor incorporated under the laws of Spain raised to the status of a Spanish Public Document) authorizing the execution and performance of the Loan Documents, certified by the Secretary or an Assistant Secretary or other duly authorized representative of the Borrower or such Guarantor, as the case may be, or of the Company.
(w)The Administrative Agent shall have received an incumbency certificate of the Borrower and each Guarantor, which shall identify by name and title and bear the signature of the officers of the Borrower or such Guarantor authorized to sign the applicable Loan Documents and to make borrowings hereunder, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Borrower, such Guarantor or the Company.
(x)The Administrative Agent shall have received a customary written opinion or opinions of Sullivan & Cromwell LLP, as New York counsel for the Loan Parties, Jones Day, as Ohio counsel for the Loan Parties, McMillan LLP, as Canadian counsel for the Loan Parties, Sullivan & Cromwell LLP, as German counsel for the Loan Parties, Ashurst LLP, as German counsel for the Secured Parties, Ashurst LLP, as Belgian counsel for the Secured Parties, Jones Day as Belgian counsel for the Loan Parties, Sullivan & Cromwell LLP, as French counsel for the Loan Parties (capacity opinion), Ashurst LLP, as French counsel for the Secured Parties, Stibbe London B.V., as Dutch counsel for the Secured Parties, Ashurst LLP, as Italian counsel for the Secured Parties, Jones Day as Italian counsel for the Loan Parties, Jones Day as
Spanish counsel for the Loan Parties, Schoenherr Halwa sp.k., as Polish counsel for the Secured Parties, Advokatfirmaet Schjødt AS, filial, as Swedish counsel for the Secured Parties and Ashurst LLP, as English counsel for the Secured Parties, addressed to the Administrative Agent, the Collateral Agent and Lenders and dated as of the Closing Date, in form and substance customary for transactions of this type.
(y)The Collateral and Guarantee Requirements shall have been satisfied; provided that to the extent that the Collateral and Guarantee Requirements (other than the execution of the Security Documents and the Guaranty, delivery of Uniform Commercial Code or PPSA financing statements with respect to perfection of security interests in all assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA of any applicable jurisdiction, delivery of intellectual property security agreements in form for filing with the USPTO, USCO and the Canadian Intellectual Property Office and the delivery of possessory collateral) cannot be satisfied at closing, are not satisfied as of the Closing Date after the Company has used commercially reasonable efforts to do so, the satisfaction of such requirements shall not be a condition to the availability of the Term Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.32 or, in each case, such later date as the Required Lenders may reasonably agree). The Collateral Agent shall have received (i) a completed Perfection Certificate dated the Closing Date and signed by an Authorized Officer of each of the Company and each Loan Party, together with all attachments contemplated thereby and (ii) results of (x) searches of the Uniform Commercial Code filings (or equivalent filings, including PPSA filings) and (y) bankruptcy, judgment, tax and intellectual property lien searches requested by the Administrative Agent, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent (acting at the direction of the Required Lenders) that the Liens indicated by such financing statements (or other documents) are permitted by hereunder or have been or will be released in connection with the funding of the Term Loans on the Closing Date.
(z)Subject to paragraph (f) above, each document (including any UCC, PPSA (or similar) financing statement and intellectual property security agreements and, with respect to Security Document governed by French law, certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Loan Party whose shares are pledged) required by any Security Document or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Security Document (unless such Security Document provides for any such requirement to be provided at a later point in time), shall be in proper form for filing, registration or recordation and the Administrative Agent have made arrangements for such filing, registration or recordation.
(aa)The Administrative Agent shall have received fully executed copies of each Intercreditor Agreement, the 2025 Notes Indenture, the New 2L Notes Indenture, the New Term Loan Facility, the Existing Term Loan Facility and the Amendments and the ABL Facility.
(ab)The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti- money laundering rules and regulations, including the Patriot Act, requested by any Lender at least 10 Business Days prior to the Closing Date.
(ac)Payment of all fees, interest and other amounts due and payable as of the Closing Date from the Company and its Subsidiaries to the Administrative Agent, the Collateral Agent and the Lenders under the Loan Documents and pursuant to any fee or similar letters executed by the Company in connection herewith shall be paid, including reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its Subsidiaries, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least two Business Days prior to the Closing Date; provided that this condition will be satisfied on the Closing Date prior to such payment if arrangements reasonably satisfactory to the Administrative Agent and the Lenders are in place at such time for the payment of such fees and expenses on the Closing Date.
(ad)(x) All the representations and warranties contained in Article V shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects and (y) no Default or Unmatured Default shall exist and be continuing or would result from the extensions of credit hereunder on the Closing Date. (ae)No default or event of default shall have existing and be continuing under, and as defined in, the Transaction Support Agreement.
(af)No event or circumstance that, individually or in the aggregate with other events or circumstances, has had or would reasonably be expected to have a Material Adverse Effect (for purposes of this clause (m) under, and as defined in, the Transaction Support Agreement), shall have occurred since October 20, 2022.
(ag)The Administrative Agent shall have received a Borrowing Notice in accordance with Section 2.3 with respect to any Advances being made on the Closing Date. (ah)The Administrative Agent shall have received (i) a certificate from the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the transactions contemplated hereby to be consummated on the Closing Date and (ii) a customary expert opinion confirming that none of the Borrower and its German Subsidiaries is illiquid (zahlungsunfähig), pending illiquid (drohend zahlungsunfähig) or over-indebted (überschuldet) under applicable laws (in accordance with standard IDW S11 of the German institute of auditors (Institut der Wirtschaftsprüfer in Deutschland e.V.)), and stating that such companies will have sufficient liquidity for the next 24 months and that there are no indications of a crisis that required the preparation of a restructuring opinion (Sanierungsgutachten).
(ai)The Administrative Agent shall have received a fully executed copy of the Subordination Agreement executed by all of the Loan Parties and any External Subsidiary which is a creditor to any Loan Party.
(aj)The consummation of the Revolver Exchange, the Term Loan Exchange, the 2025 Consent Solicitation and the 2024 Consent Solicitation and Exchange Offer substantially concurrently with the funding of the Loans on the Closing Date; provided that in the case of the (x) Term Loan Exchange, the aggregate principal amount of Existing Term Loans exchanged shall not be lower than 95.0% (or a different amount mutually agreed by the Company and the Majority Consenting Parties (as defined in the Transaction Support Agreement)) of the aggregate principal amount of outstanding Existing Term Loans and (y) in the case of the 2024 Consent Solicitation and Exchange Offer, the aggregate principal amount of 2024 Notes that provide consents and exchange pursuant to the 2024 Consent Solicitation and Exchange Offer shall not be lower than 81.3%.
(ak)The Administrative Agent shall have received a certificate of each Loan Party, dated the Closing Date, with appropriate insertions or as otherwise customary in the relevant jurisdiction of incorporation of a Foreign Loan Party, executed by any Authorized Officer of such Loan Party, and including or attaching the documents referred to in
clauses (b) through (d) of this Section and, in the case of the certificate delivered by the Borrower, confirming compliance with the conditions set forth in paragraph (k), (l) and (m) of this Section 4.1.
(al)Receipt of customary evidence of: (1) the acceptance and cancellation of the 2024 Notes tendered in exchange for the New 2L Notes, (2) the issuance of the New 2L Notes, (3) the effectiveness of the Amendments and (4) the funding of the New Term Loans.
(am)The Initial New Term Loan Paydown shall have been consummated substantially concurrently with the funding of the Loans on the Closing Date.
(an)The Administrative Agent shall have received in relation to the Polish Loan Party: a certificate from the social security office, relevant tax authorities and municipality office confirming that there are no outstanding payments from a Polish Loan Party issued no more than 60 days before the Closing Date, or confirmation that that Polish Loan Party is not registered as a social security payer; and a certificate issued by the registry of registered pledges and registry of treasury pledges, respectively, of no prior registration of, or pending application for registered pledge or treasury pledge over any assets of that Polish Loan Party or shares in that Polish Loan Party.
(ao)With respect to a Dutch Loan Party, the Administrative Agent shall have received either (i) a positive or neutral advice (advies) from the works council of the Dutch Loan Party, which, if conditional, contains conditions which are acceptable to the Administrative Agent (acting at the direction of the Required Lenders), including the request for advice or (ii) a confirmation of the board of directors (or equivalent) of such Dutch Loan Party that no works council (ondernemingsraad) having jurisdiction over such Dutch Loan Party has been installed and that there is no works council having jurisdiction over the transactions contemplated by the Loan Documents.
(ap)With respect to a Polish Loan Party, the Administrative Agent shall have received (i) a copy of the articles of association (umowa/statut spółki) of that Polish Loan Party and (ii) an electronic extract from the national commercial register (Krajowy Rejestr Sądowy) in respect of that Polish Loan Party.
(aq)In respect of any Guarantor incorporated under the laws of Spain, the Administrative Agent shall have received a copy of an updated certificate (certificación literal) issued by the relevant Mercantile Registry, certifying the updated version of their by-laws, the composition of its governing body, that it is validly incorporated in Spain and is not under an insolvency proceeding and they have not adopted any agreement to be dissolved and/or liquidated; and to the extent the issued certificate of any Guarantor incorporated under the laws of Spain does not contain all such up-to date corporate information, supplementing it with copies of any public documents that have been granted and are pending registration with the Mercantile Registry (if any) or have been registered with the Mercantile Registry but are not reflected in the delivered certification (if any).
(ar)In respect of the Borrower and each Guarantor incorporated under the laws of Germany, the Administrative Agent shall have received (i) up to date copies of the commercial register extracts (Handelsregisterauszüge),
(ii) up to date copies of lists of shareholders (Gesellschafterlisten) as published in the commercial register, and (iii) up to date copies of the articles of associations (Satzung) and any by-laws (Geschäftsordnungen) (if any).
(as)In relation to an Italian Guarantor, the Administrative Agent shall have received copies of the articles of incorporation (atto costitutivo and statuto) and a certificato di iscrizione dated not earlier than 5 Business Days from the date of execution of this Agreement.
(aa) In respect of a Belgian Guarantor, the Administrative Agent shall have received (i) a copy of its deed of incorporation (oprichtingsakte/acte constitutive), (ii) a copy of the coordinated articles of association (gecoördineerde statuten/statuts coordonnés), (iii) a copy of an extract of the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen/Banque-Carrefour des Entreprises) dated no earlier than the day falling 5 Business Days before the date of this Agreement, and (iv) a copy of a non-insolvency certificate from the clerk’s office of the relevant Enterprise Court dated no earlier than the day falling 5 Business Days before the date of this Agreement.
(bb) With respect to a French Loan Party, the Collateral Agent shall have received (i) a copy of the certificate of incorporation (extrait k-bis), (ii) a copy of the solvency certificate (certificate de non-faillite), (iii) a copy of the lien searches (état des inscriptions et des privilèges), each dated no earlier than fifteen (15) Business Days. Original copies of such documents will be provided after the Closing Date to the Collateral Agent and the Collateral Agent shall have received fully executed copies of the French Collateral Documents With respect to Security Documents governed by French law, the Collateral Agent shall have received certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Loan Party whose shares are pledged.
(cc) The Administrative Agent shall have received evidence satisfactory to it that Dalriada Trustees Limited, in its capacity as trustee of the Wincor Nixdorf Defined Benefit Pension Scheme, has confirmed in writing to Diebold Nixdorf (UK) Limited its non-objection to the Transactions and to Diebold Nixdorf (UK) Limited’s participation in the Transactions.
(dd) The “Transactions” (as defined in the Transaction Support Agreement) shall have been consummated in accordance with the terms of the Transaction Support Agreement.
(ee) All fees and expenses required to be paid to the “Ad Hoc Group Advisors” and the “Term Loan Group Advisors” (each, as defined in the Transaction Support Agreement) under the terms of their respective fee and/or engagement letters or the Transaction Support Agreement shall have been paid.
For purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement (and each prospective Lender participating in the primary syndication of the Loans) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender or prospective Lender prior to the proposed Closing Date specifying its objection thereto.
ARTICLE V REPRESENTATIONS AND WARRANTIES
Each of the Company and the Borrower represents and warrants to the Lenders and the Agents on the Closing Date and each other date such representations and warranties are made pursuant to the Loan Documents, that:
5.31.Corporate Existence and Standing. The Company, each Loan Party and, other than as would not reasonably be expected to have a Material Adverse Effect, each of their Subsidiaries is a corporation, partnership, limited liability company, unlimited liability company or other organization, duly organized and validly existing under the laws of its jurisdiction of organization and has all requisite corporate, partnership, company or similar authority to conduct its business as presently conducted (in each case, in the case of Foreign Subsidiaries, to the extent such legal concepts are applicable thereto). The actual place of administration of the Borrower and any Guarantor incorporated under German law is located within the Federal Republic of Germany.
5.32.Authorization and Validity. Each Loan Party has the corporate or other power and authority and legal right to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by each Loan Party of the Loan Documents to which it is a party and the performance of its obligations thereunder have been duly authorized by proper corporate or other applicable company proceedings. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
5.33.No Conflict; Government Consent. Neither the execution and delivery by the Loan Parties of the Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Company or any of its Subsidiaries or the Company’s or any Subsidiary’s constitutive documents or the provisions of any material indenture, instrument or agreement to which the Company or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than any Lien permitted by Section 6.16) in, of or on the Property of the Company or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. Other than those that have been obtained, no order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, any of the Loan Documents.
5.34.Financial Statements. The Company has heretofore furnished to the Lenders the Company’s consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2021, reported on by KPMG, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2022.
All financial statements of the Company and its Subsidiaries delivered to the Administrative Agent pursuant to clause
(i) or (ii) of Section 6.1 or Article IV on and after the Closing Date were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present in all material respects the consolidated financial condition and operations of the Company and its Subsidiaries (other than in the case of annual financial statements, subject to the absence of footnotes and year-end audit adjustments). 5.35.Material Adverse Change. Since the Closing Date, there has been no change in the business, Property, operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, which could reasonably be expected to have a Material Adverse Effect.
5.36.Taxes. Each of the Company, the Borrower and each of the Company’s Subsidiaries has filed all United States federal tax returns and all other tax returns that are required to be filed with any Governmental Authority and has paid all Taxes required to be paid by it, except (i) such Taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP and as to which no Lien (other than as permitted by Section 6.16) exists or (ii) where the failure to do so could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. No tax Liens have been filed and no claims are being asserted with respect to any such Taxes, other than as permitted by Section 6.16.
5.37.Litigation and Guarantee Obligations. Except as set forth on Schedule 5.7 hereto, there is no litigation, arbitration or proceeding pending or, to the knowledge of any of the Company’s executive officers, any governmental investigation or inquiry pending or any litigation, arbitration, governmental investigation, proceeding or inquiry threatened in writing against or affecting the Company or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of the Loans or Advances. Other than any liability incident to such litigation, arbitration or proceedings listed on Schedule 5.7, the Company and its Subsidiaries have no material Guarantee Obligations not provided for or disclosed in financial statements referred to in Section 5.4 that could reasonably be expected to have a Material Adverse Effect.
5.38.Subsidiaries. Schedule 5.8 hereto contains an accurate list of all Subsidiaries of the Company as of the Closing Date, setting forth their respective jurisdictions of incorporation or organization and the percentage of their respective Capital Stock owned by the Company or other Subsidiaries. All of the issued and outstanding shares of Capital Stock of such Subsidiaries held by the Company have been duly authorized and issued and are fully paid and non-assessable (to the extent such concepts are applicable).
5.39.ERISA; Canadian Pension Plans; UK and Other Pension Schemes. Except where noncompliance could not reasonably be expected to have a Material Adverse Effect, each member of the Controlled Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan. Each Plan is in compliance with the applicable provisions of ERISA and the Code except where such non-compliance could not reasonable be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect, no Reportable Event which has or may result in any liability has occurred with respect to any Plan, and no member of the Controlled Group has withdrawn (completely or partially) from any Multiemployer Plan. No member of the Controlled Group has (i) filed an application for the waiver of the minimum funding standards under Section 412 of the Code or Section 302 of ERISA with respect to any Plan, (ii) made an amendment to a Plan that could result in the posting of a bond or other security under Section 436(f)(1) of the Code having a value individually or collectively in excess of $50,000,000 or (iii) incurred any liability under Title IV of ERISA that could reasonably be expected to have a Material Adverse Effect, other than a liability to the PBGC for premiums due but not delinquent under Section 4007 of ERISA or a liability that has been satisfied. No Foreign Plan Event has occurred that could reasonably be expected to have a Material Adverse Effect. No Lien has been imposed upon any Loan
Party pursuant to Section 430(k) of the Code or Section 303(k) of ERISA. No Loan Party maintains, sponsors, administers, contributes to, participates in or has any liability in respect of any Canadian Defined Benefit Plan, nor has any such Person ever maintained, sponsored, administered, contributed or participated in any Canadian Defined Benefit Plan. Any and all Canadian Pension Plans are duly registered under the Income Tax Act (Canada) and any other applicable laws which require registration, have been administered in accordance with the Income Tax Act (Canada) and such other applicable law and no event has occurred which could cause the loss of such registered status. All obligations of the Loan Parties (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans and the funding agreements relating thereto have been performed on a timely basis. All contributions or premiums required to be made or paid by the Loan Parties and their Subsidiaries to the Canadian Pension Plans have been made on a timely basis in accordance with the terms of such plans and all applicable laws. No Lien has arisen, choate or inchoate, in connection with any Canadian Pension Plan (save for contribution amounts not yet due). No Canadian Pension Event has occurred that could reasonably be expected to have a Material Adverse Effect. Except for the Wincor Nixdorf Defined Benefit Pension Scheme, neither the Company nor any of its Subsidiaries is or has at any time been an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993 (UK)) and neither the Company nor any of its Subsidiaries is or has at any time been "connected" with or an "associate" of (as those terms are used in sections 38 and 43 of the Pensions Act 2004 (UK)) such an employer. All pension schemes operated by or maintained for the benefit of any Loan Party and/or any of their respective employees have been contributed to to the extent required by applicable local law and regulation where the failure to do so has or is reasonably likely to have a Material Adverse Effect.
5.40.Accuracy of Information. No information, exhibit or report furnished by the Company or any of its Subsidiaries in writing to the Administrative Agent or to any Lender in connection with the negotiation of the Loan Documents contain, when taken as a whole any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, as of the date thereof; provided, however, that with respect to projected financial information and information of a general economic or industry specific nature, the Company represents only that such information has been prepared in good faith based on assumptions believed by the Company to be reasonable.
5.41.Regulations T, U and X. Neither the Company nor any of its Subsidiaries extends or maintains, in the ordinary course of business, credit for the purpose, whether immediate, incidental, or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any Advance will be used for the purpose, whether immediate, incidental, or ultimate, of buying or carrying any such Margin Stock or maintaining or extending credit to others for such purpose in any way that would violate Regulation T, U or X. After applying the proceeds of each Advance, Margin Stock will not constitute more than 25% of the value of the assets (either of the Company alone or of the Company and its Subsidiaries on a consolidated basis) that are subject to any provisions of any Loan Document that may cause the Advances to be deemed secured, directly or indirectly, by Margin Stock. The Company and its Subsidiaries are in compliance with Section 6.2.
5.42.Use of Proceeds. The proceeds of the Credit Facilities shall be used to repay the New Term Loans on a pro rata basis
(i) on the Closing Date, at par in an amount equal to 15% of the principal amount of Existing Term Loans that participate in the Term Loan Exchange, (ii) on December 31, 2023, at par in an amount equal to 5% of the principal amount (at the time of the Term Loan Exchange) of Existing Term Loans that participated in the Term Loan Exchange, subject in the case of clause (ii) to pro forma liquidity (tested on a trailing 10-day average and based on global cash or Cash Equivalents of the Company and its Subsidiaries, and unused availability under the ABL Facility, but without deduction for any amounts used to pay, prepay, repay, satisfy, purchase, exchange, redeem, retire, acquire, defease, cancel or terminate the Excess Stub Notes (including any payment of interest, fees or principal on account of such Excess Stub Notes) on December 31, 2023 in excess of $250,000,000 (the “Liquidity Condition”) and (iii) solely in the event the repayment in clause (ii) is not made as a result of the Liquidity Condition not being satisfied, on December 31, 2024, at par in an amount equal to 5% of the principal amount (at the time of the Term Loan Exchange) of Existing Term Loans that participated in the Term Loan Exchange, subject to the Liquidity Condition (tested on a trailing 10-day average and based on global cash or Cash Equivalents of the Company and its Subsidiaries, and unused availability under the ABL Facility, but without deduction for any amounts used to pay, prepay, repay, satisfy, purchase, exchange, redeem, retire, acquire, defease, cancel or terminate the Excess Stub Notes (including any payment of interest, fees or principal on account of such Excess Stub Notes) measured on a pro forma basis on December 31, 2024 (such payments collectively, the “New Term Loan Paydown”) and for general corporate purposes (and, for the avoidance of doubt, shall not be used to make payments on any other funded indebtedness).
5.43.Compliance With Laws; Properties. The Company and its Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective Property, failure to comply with which could reasonably be expected to have a Material Adverse Effect.
5.44.Plan Assets; Prohibited Transactions. No Loan Party has engaged in any non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code which could reasonably be expected to have a Material Adverse Effect.
5.45.Environmental Matters. The Company and its Subsidiaries are not and have not been in violation of any Environmental Laws in such a fashion that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received any written notice regarding liabilities under or compliance with Environmental Laws or are the subject of any litigation, arbitration, governmental investigation, proceeding or inquiry related to Environmental Laws, Hazardous Substances or Remedial Action, except in each case as would not reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, neither the Company nor any Subsidiary has incurred any Environmental Liability.
5.46.Investment Company Act. No Loan Party is an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
5.47.Intellectual Property Matters. Except as would not reasonably be expected to have a Material Adverse Effect or as set forth in Schedule 5.17, (a) the Company and each of its Subsidiaries own, or possess the valid license or legal right to use, all intellectual property used in, held for use in or necessary for the conduct of the respective businesses of the Company and its Subsidiaries, free and clear of all Liens other than Liens permitted by Section 6.16 , (b) none of the Company or its Subsidiaries are infringing upon, misappropriating or otherwise violating any intellectual property of any person, and there are no claims or litigation pending or, to the knowledge of the Loan Parties, threatened against the Company or any of its Subsidiaries alleging the foregoing and (c) there are no claims or litigation pending or, to the knowledge of the Loan Parties, threatened by or against the Company or any of its Subsidiaries relating to any of the intellectual property owned by the Company or any of its Subsidiaries.
5.48.Insurance. The Company and its Subsidiaries maintain insurance with financially sound and reputable insurance companies (or self-insurance programs) on their Property in such amounts (with such customary deductibles, exclusions and self- insurance) and covering such risks as management of the Company reasonably considers consistent with sound business practice.
5.49.Ownership of Properties. On the Closing Date, the Company and its Subsidiaries will have good and marketable fee simple to, or a valid leasehold interest in, all of its real property, including the Mortgaged Properties, and all Property and assets reflected in their financial statements for such date as owned, leased or otherwise held by them, free and clear of all Liens, other than Liens permitted by Section 6.16 .
5.50.Labor Controversies. There are no labor controversies pending or, to the best of the Company’s knowledge, threatened against the Company or any Subsidiary, that could reasonably be expected to have a Material Adverse Effect.
5.51.Burdensome Obligations. The Company does not presently anticipate that future expenditures needed to meet the provisions of federal or state statutes, orders, rules or regulations will be so burdensome as to cause a Material Adverse Effect.
5.52.Patriot Act. None of the Company or its Subsidiaries is in violation, in any material respect, of any applicable law primarily relating to counter-terrorism including, without limitation, the United States Executive Order No. 13224 on Terrorist Financing, effective September 24, 2011, and the Patriot Act.
5.53.Anti-Corruption Laws and Sanctions. The Loan Parties have implemented, maintain in effect and enforce policies and procedures designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with applicable Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and their respective officers and employees (in their respective capacities as such), and to the knowledge of the Company, its directors and agents (in their respective capacities as such), are in compliance with applicable Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Company, any Subsidiary or any of their respective officers or employees, or (b) to the knowledge of the Company, any director or agent of the Company or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Advance, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or Sanctions. The foregoing representations given in this section shall not apply to any party hereto (A) to which the Blocking Regulation applies, if and to the extent that such representations are or would be unenforceable by or in respect of that party pursuant to, or would otherwise result in a breach and/or violation of, (i) any provision of the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the European Union), (ii) any similar blocking or anti- boycott law in the United Kingdom or (iii) Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung).
5.54.Perfection, Etc..
5.1.1On and after the Closing Date, the Security Documents are effective to create in favor of the Collateral Agent for its benefit and the ratable benefit of the Secured Parties a legal, valid, and enforceable (subject to applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity) Lien (subject to Liens permitted by Section 6.16) on the Collateral as security for the relevant Obligations, and when (i) financing statements and other filings in appropriate form are filed, (ii) intellectual property security agreements are filed with and recorded by the United States Patent and Trademark Office, the United States Copyright Office, or any foreign counterparts of the foregoing, as applicable, and (iii) upon the taking of possession or control by the Collateral Agent (acting at the direction of the Required Lenders) of the Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the applicable Security Document), the Liens created by the Security Documents shall constitute fully perfected first priority Liens (subject to Liens permitted by Section 6.16) on, and security interests in, all right, title and interest of the grantors in the Collateral to the extent perfection is required in accordance with the terms of the Security Documents (other than such Collateral in which a security interest cannot be perfected (x) under the UCC as in effect at the relevant time in the relevant jurisdiction by the filing of a financing statement, (y) possession or control by the secured party, or (z) through filings with the United States Patent and Trademark Office, the United States Copyright Office, or any foreign counterparts of the foregoing, as applicable), in each case subject to (i) no Liens other than Liens permitted under the Credit Documents and (ii) the terms of the Intercreditor Agreement. 5.1.2Each Security Document (other than Mortgages or any other registrable Spanish Collateral Documents) delivered pursuant to Section 6.9 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the applicable Collateral described therein, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable law, (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Applicable Collateral Agent to the extent required by any Collateral Document) and (iii) solely to the extent required by applicable local law, any notices to shareholders, account banks or other third parties have been made or, in the case of any Polish Collateral Documents, any motions, notices, filings or acknowledgements made under or in connection with any Polish Collateral Documents have been filed, dispatched or made on terms specified in respective Polish Collateral Document or respective provisions of Polish law, such Security Document will constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in such Collateral (to the extent intended to be created thereby and required to be perfected under the Loan Documents), in each case subject to no Liens other than the Liens permitted under the Loan Documents.
5.1.3Each Mortgage and any other registrable Spanish Collateral Documents delivered pursuant to Section 6.9 will be in a form that, when duly executed and delivered (and, when required under the relevant law, registered in the relevant registry), will be effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, subject only to Liens permitted by Section 6.16 , and when such Mortgage is duly executed and delivered and properly filed (together with all other necessary filings, if any, in appropriate form) in the applicable office specified in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Section 6.9, such Mortgage shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the Mortgaged Property contemplated thereby and the proceeds thereof, in each case prior and superior in right to any other Person, other than Liens permitted by Section 6.16. 5.1.4Each Collateral Document not described in this Section 5.24 creates valid security interests in, and Liens on, the Collateral covered thereby, which security interests and Liens will be, upon the taking of all required perfection actions in each applicable jurisdiction and, except to the extent otherwise expressly provided for herein or in the Security Documents, perfected security interests and Liens, prior to all other Liens (other than Liens permitted by Section 6.16 having priority over the Liens of the Collateral Agent (subject to any applicable Intercreditor Agreement)). 5.55.Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date, as applicable (i) each of the Fair Value and the Present Fair Salable Value of the assets of the Company and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Company and its Subsidiaries taken as a whole Do Not Have Unreasonably Small Capital; (iii) the Company and its Subsidiaries taken as a whole Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature; and (iv) neither the Company nor any Subsidiaries are illiquid, pending illiquid or over-indebted under applicable insolvency laws, including (if applicable) sections 17 to 19 of the German insolvency code (Insolvenzordnung), or would become so immediately after the consummation of the Transactions to occur on the Closing Date.
For the purposes hereof, (a) the term “Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of the Company and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act; (b) the term “Present Fair Salable Value” means the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Company and its
Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated; (c) the term “Stated Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Company and its Subsidiaries taken as a whole, as of the applicable date, after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on such applicable date), determined in accordance with GAAP consistently applied; (d) the term “Identified Contingent Liabilities” means the maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the applicable date) (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Company, (e) the term “Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature” means that the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the applicable date) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable; and (f) the term “Do Not Have Unreasonably Small Capital” means the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the applicable date) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
5.56.Centre of Main Interest. Its Centre of Main Interests and, in the case of the Borrower and any Guarantor incorporated under German law, also its actual place of administration (tatsächlicher Verwaltungssitz), is, and has ever been since the date of its incorporation, situated in the jurisdiction under whose laws it has been incorporated. It has no “establishment” (as that term is used in article 2(10) of the Insolvency Regulation and, in respect of any English Loan Party, article 2(10) of the Retained Insolvency Regulation) in any other jurisdiction than the jurisdiction under whose laws it has been incorporated.
5.57.Affected Financial Institutions. No Loan Party is an Affected Financial Institution.
5.58.Segregation of Assets Under the Italian Civil Code.
No Italian Guarantor may segregate assets or revenues for the purpose of article 2447-bis, letter (a) or letter (b), of the Italian Civil Code, by creating any patrimono destinato ad uno specifico affare or incurring any finanziamento destinato ad uno specifico affare.
No Italian Guarantor has created any patrimonio destinato ad uno specifico affare nor has incurred any finanziamento destinato ad uno specifico affare pursuant to article 2447-bis and following of the Italian Civil Code.
5.59.Direction and Coordination Activity under Italian Civil Code. The Italian Guarantor is subject to the “attività di direzione e coordinamento” pursuant to art. 2497 and ff. of the Italian Civil Code of the Company.
5.60.DAC6. No transaction contemplated by the Loan Documents nor any transaction to be carried out in connection with any transaction contemplated by the Loan Documents meets any hallmark set out in Annex IV of DAC6.
ARTICLE VI COVENANTS
On and after the Closing Date until the termination in full of the Commitments and payment in full of all Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted):
6.34.Financial Reporting. The Company will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, for the benefit of the Lenders (or in the case of clause (ix) below, the Lenders specified therein):
(i)Within 90 days (or such earlier date as the Company may be required to file its applicable annual report on Form 10-K by the rules and regulations of the SEC) after the close of each of its fiscal years, an audit report (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any such exception or qualification related to impending maturity of any Loans or Commitments under this Agreement, the Existing Term Loans or the 2024 Notes or a prospective breach of Section 6.33) certified by independent certified public accountants reasonably acceptable to the Administrative Agent (acting at the direction of the
Required Lenders), prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, related profit and loss statements, and a statement of cash flows, and if available to the Company after the Company’s use of commercially reasonable efforts to so obtain, accompanied by a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof.
(ii)Within 45 days (or such earlier date as the Company may be required to file its applicable quarterly report on Form 10-Q by the rules and regulations of the SEC) after the close of each of the first three quarterly periods of each fiscal year, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss statements and a consolidated unaudited statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by a Designated Financial Officer.
(iii)[Reserved].
(iv)Together with the financial statements required under Sections 6.1(i) or (ii), a compliance certificate in substantially the form of Exhibit F (a “Compliance Certificate”) signed by a Designated Financial Officer and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof. (v)Promptly and in any event within 30 Business Days after the Company knows that any Reportable Event has occurred with respect to any Plan or a Canadian Pension Event with respect to a Canadian Pension Plan (or such longer period as is acceptable to the Administrative Agent (acting at the direction of the Required Lenders)), a statement, signed by a Designated Financial Officer of the Company, describing said Reportable Event or Canadian Pension Event and the action which the Company proposes to take with respect thereto.
(vi)Promptly and in any event within 15 Business Days after receipt by the Company (or such longer period as is acceptable to the Administrative Agent (acting at the direction of the Required Lenders)), a copy of (a) any written notice or claim to the effect that the Company or any of its Subsidiaries is or may be liable to any Person as a result of the Release by the Company, any of its Subsidiaries, or any other Person of any Hazardous Substances into the environment, and (b) any written notice alleging any violation of any Environmental Law by the Company or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(vii)Promptly after the sending or filing thereof, copies of all reports, proxy statements and financial statements that the Company or any of its Subsidiaries sends to or files with any of their respective securities holders (other than the Company or another Subsidiary) or any securities exchange or the SEC pertaining to the Company or any of its Subsidiaries as the issuer of securities.
(viii)Such other information (including non-financial information) as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request.
(ix)Within 45 days after the end of each of the first two months of each of its fiscal quarters, to the Administrative Agent for distribution to the Lenders with access to the private-side agency intralinks or similar site, a year- over-year year to date profit and loss bridge and free cash flow schedule (which need not be prepared in accordance with GAAP).
Notwithstanding the foregoing clauses (i) and (ii) above, as to any information contained in materials furnished pursuant to clause (vii) above, the Company shall not be separately required to furnish such information under the clauses (i) or (ii) above, provided the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in the above clauses (i) and (ii) above at the times specified therein. Materials required to be delivered pursuant to any of clauses (i) through (vii), inclusive, above (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet, and gives written notice thereof to the Administrative Agent; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), and the Administrative Agent shall have received written notice of such posting.
6.35.Use of Proceeds.
(a)The Company will, and will cause each Subsidiary to, use the proceeds of the Advances under the Credit Facilities to consummate the New Term Loan Paydown consistent with Section 5.12 and for general corporate purposes (and, for the avoidance of doubt, shall not be used to make payments on any other funded indebtedness). The Company will not, nor will it permit any Subsidiary to, use any of the proceeds of the Advances to purchase or carry any Margin Stock in any way in violation of Regulation T, U or X.
(b)The Borrower will not request any Advance, and the Borrower shall not use, and shall ensure that the Company its Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds
of any Advance directly or indirectly (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation in any material respect of any Anti- Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in violation of Sanctions, or (C) in any manner that would result in the violation of any Sanctions by any Lender or Agent party hereto. The Borrower will take actions designed to ensure compliance by the Borrower, its Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with Anti-Corruption Laws and Sanctions in all material respects. The foregoing clauses (B) and (C) of this Section 6.2(b) will not apply to any party hereto to which the Blocking Regulation applies, if and to the extent that such covenants are or would be unenforceable by or in respect of that party pursuant to, or would otherwise result in a breach and/or violation of, (A) any provision of the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the European Union) or (B) any similar blocking or anti-boycott law in the United Kingdom or (C) section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung).
6.36.Notice of Default. The Company will, and will cause its Subsidiaries to, after any senior officer of the Company has knowledge thereof, give prompt notice in writing to the Administrative Agent of the occurrence of (i) any Default or Unmatured Default or (ii) of any other development, financial or otherwise (including, without limitation, relating to any Plan, Canadian Pension Plan, Multiemployer Plan or Foreign Plan), which could reasonably be expected to have a Material Adverse Effect.
6.37.Conduct of Business. Neither the Company nor any of its Subsidiaries shall enter into any material business, either directly or through any Subsidiary, except for those businesses (a) in which the Company and its Subsidiaries are engaged on the date of this Agreement or (b) that are reasonably related, incidental, ancillary, complementary (including related, complementary, synergistic or ancillary technologies) or similar thereto, or a reasonable extension, development or expansion thereof. The Company will, and will cause each Subsidiary to do all things necessary to remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a corporation, partnership, limited liability company, unlimited liability company or other organizational form in its jurisdiction of incorporation or organization, as the case may be (unless, with respect to Subsidiaries other than the Borrower, the failure to do so could not reasonably be expected to have a Material Adverse Effect), and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, unless the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.38.Taxes. The Company and the Borrower will, and will cause each Subsidiary to, timely file complete and correct United States federal and applicable foreign, state and local tax returns required by law and pay when due all Taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except (i) those that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with GAAP or IFRS, as applicable or (ii) where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
6.39.Insurance. The Company will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance on all their Property in such amounts (with such customary deductibles, exclusions and self- insurance) and covering such risks as is consistent with sound business practice.
6.40.Compliance with Laws. The Company will, and will cause each Subsidiary to, comply with all Requirements of Law (including, without limitation, Environmental Laws), except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.41.Properties; Inspection. The Company will, and will cause each Subsidiary to, do all things reasonably necessary to maintain, preserve, protect and keep its material Property in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements to the extent the Company reasonably deems consistent with sound business practice. The Company will, and will cause each Subsidiary to, permit representatives of the Agents (and through the Agents, the Lenders), to reasonably inspect any of the Property of the Company and each Subsidiary, the financial or accounting records of the Company and each Subsidiary and other documents of the Company and each Subsidiary, in each case only to the extent any of the foregoing is reasonably related to the credit evaluation by the relevant Agent and the Lenders under this Agreement, to examine and make copies of such records and documents of the Company and each Subsidiary, and to discuss the affairs, finances and accounts of the Company and each Subsidiary with, and to be advised as to the same by, their respective officers upon reasonable prior notice at such reasonable times and intervals as the relevant Agent may designate; provided that (x) other than after the occurrence and during the continuance of a Default, no more than one such inspection shall be conducted in any fiscal year and (y) only after the occurrence and during the continuance of a Default shall such inspections be at Company’s expense; provided further that all such inspection rights will be limited to the extent necessary for the Company and its Subsidiaries to comply with contractual confidentiality obligations not entered into by the Company or any of its Subsidiaries for the purpose of avoiding obligations under this Section 6.8. The Agents and the Lenders agree to use reasonable efforts to coordinate and manage the exercise of their rights under this Section 6.8 so as to minimize the disruption to the business of the Borrower and its Subsidiaries resulting therefrom.
6.42.Collateral Matters; Further Assurances, Etc.
(a)On and after the Closing Date the Company and the Borrower will, and will, subject in the case of the Domestic Loan Parties to the Domestic Collateral and Guarantee Requirement and the Foreign Loan Parties to the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles, as applicable, cause each Subsidiary that is a Guarantor (including any Wholly Owned Subsidiaries required to enter into the Guaranty pursuant to Section 2.18), to execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements), which may be required under any applicable law, or which the Collateral Agent (acting at the direction of the Required Lenders) may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien, all at the expense of the Company. (b)On and after the Closing Date, with respect to any property (other than Excluded Assets and Foreign Excluded Assets) of the Company or any Guarantors as to which the Collateral Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Agent such amendments to the Security Documents or such other documents as the Collateral Agent (acting at the direction of the Required Lenders) deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest (subject to Liens permitted under Section 6.16) in such property, including the filing of Uniform Commercial Code and PPSA financing statements in such jurisdictions as may be required by the Security Documents or by law or as may be reasonably requested by the Collateral Agent (acting at the direction of the Required Lenders). (c)On and after the Closing Date, with respect to any fee interest in any real property (together with improvements thereof) having a fair market value in the reasonable judgment of the Company of at least $10,000,000, except to the extent constituting Excluded Assets or Foreign Excluded Assets, within 90 days after the Closing Date or, if later, the acquisition thereof or joinder of the applicable Guarantor owning such property (or in each case such later date as agreed by the Collateral Agent), (i) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (ii) if reasonably requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount equal to the fair market value referred to above (but in no event less that the purchase price of such real property), or such other amount as shall be reasonably specified by the Collateral Agent acting at the direction of the Required Lenders), which title insurance shall contain such endorsements and affirmative coverage as may be reasonably requested by the Collateral Agent and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent, (iii) if requested by the Collateral Agent (acting at the direction of the Required Lenders), a current ALTA survey of such real property, together with a surveyor’s certificate, (iv) if requested by the Collateral Agent (acting at the direction of the Required Lenders), deliver to the Collateral Agent legal opinions of local counsel and counsel in the jurisdiction where the relevant Guarantor is organized relating to such matters as may be reasonably requested by the Collateral Agent (acting at the direction of the Required Lenders), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent (acting at the direction of the Required Lenders), and (v) if requested by the Collateral Agent (acting at the direction of the Required Lenders), provide a Phase I environmental assessment report for such property that is reasonably acceptable to the Collateral Agent (acting at the direction of the Required Lenders) in form and substance.
(d)On and after the Closing Date, with respect to any Subsidiary created or acquired by the Company or any Guarantor, within 45 days of such Person becoming a Subsidiary (or such later date as agreed by the Collateral Agent) (i) the Company shall take all actions (if any) to cause such Subsidiary (other than an Excluded Subsidiary) to comply with the Collateral and Guarantee Requirements, (ii) the Company shall, or shall cause the applicable Guarantor to, execute and deliver to the Collateral Agent such amendments to the Security Documents as the Collateral Agent (acting at the direction of the Required Lenders) deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest (subject to Liens permitted under Section 6.16) in the Capital Stock of such new Subsidiary that is owned by the Company or any Guarantor except to the extent such Capital Stock constitutes an Excluded Asset or Foreign Excluded Assets, and (iii) except to the extent constituting Excluded Assets or Foreign Excluded Assets, if such Capital Stock is certificated, deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Guarantor, as applicable. (e)Notwithstanding anything to the contrary herein or in any other Loan Documents, the Paderborn Property shall cease to be a Foreign Excluded Asset and shall be Collateral upon written notice from the Collateral Agent (acting at the direction of the Required Lenders), and such real property shall be subject to Section 6.9(c) above as if such real property had been acquired on the date of such notification.
(f)MIRE Events. Each of the parties hereto acknowledges and agrees that, if there are any Mortgages, any increase, extension or renewal of any of the Commitments or Loans (including the provision of any incremental credit
facilities hereunder, but excluding any continuation or conversion of Advances) may at the discretion of the Designated Lender be subject to (and conditioned upon): (1) the prior delivery of all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such Mortgages as required by Flood Insurance Regulations and as otherwise reasonably required by the Administrative Agent, the Collateral Agent (acting at the direction of the Required Lenders) or Designated Lender and (2) the Administrative Agent having received written confirmation from the Designated Lender (if any), flood insurance due diligence and flood insurance compliance has been completed thereby (such written confirmation not to be unreasonably withheld, conditioned or delayed).
(g)Flood Insurance. With respect to each Mortgage that is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” with respect to which flood insurance has been made available under Flood Insurance Regulations, the applicable Loan Party (A) has obtained and will maintain, with financially sound and reputable insurance companies (except to the extent that any insurance company insuring the Mortgage of the Loan Party ceases to be financially sound and reputable after the Closing Date, in which case, the Company shall promptly replace such insurance company with a financially sound and reputable insurance company), such flood insurance in such reasonable total amount as the Administrative Agent, the Collateral Agent (acting at the direction of the Required Lenders) and the Designated Lender may from time to time reasonably require, and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (B) promptly upon request of the Administrative Agent or the Designated Lender, will deliver to the Administrative Agent, the Collateral Agent or such Designated Lender, as applicable, evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent or such Designated Lender, including, without limitation, evidence of annual renewals of such insurance.
(h)Pledges of Mortgaged Property. Notwithstanding the foregoing or anything herein to the contrary, the Collateral Agent shall not enter into any Mortgage in respect of any real property located in the United States acquired by the Company or any other Loan Party after the Closing Date until (1) the date that occurs 30 days after the Administrative Agent has delivered to the Designated Lender (which may be delivered electronically) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (x) if such real property is located in a “special flood hazard area”, (I) a notification to the Company (or applicable Loan Party) of that fact and (if applicable) notification to the Company (or applicable Loan Party) that flood insurance coverage is not available and (II) evidence of the receipt by the Company (or applicable Loan Party) of such notice; and (y) if such notice is required to be provided to the Company (or applicable Loan Party) and flood insurance is available in the community in which such real property is located, evidence of required flood insurance and (2) the Administrative Agent shall have received written confirmation from the Designated Lender that flood insurance due diligence and flood insurance compliance has been completed by the Designated Lender (such written confirmation not to be unreasonably conditioned, withheld or delayed).
(i)Pensions.
(x)Except for the Wincor Nixdorf Defined Benefit Pension Scheme, the Company shall ensure that no member of the Group is or has been at any time an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993 (UK)) or “connected” with or an “associate” of (as those terms are used in sections 38 or 43 of the Pensions Act 2004 (UK)) such an employer.
(xi)The Company shall ensure that all schedules of contributions in relation to pension schemes operated by or maintained for the benefit of the Company or any other Loan Party and/or any of their respective employees are complied with in accordance with each of the Company’s and the other Loan Parties’ legal and contractual obligations and that no action or omission is taken by the Company or any other Loan Party in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse Effect.
(xii)The Company shall deliver to the Administrative Agent at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to the Parent), actuarial reports in relation to the Wincor Nixdorf Defined Benefit Pension Scheme.
(xiii)The Company shall promptly notify the Administrative Agent of any material change in the rate of contributions to any pension schemes mentioned in paragraph (ii) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise).
(xiv)The Company shall promptly notify the Administrative Agent of any investigation or proposed investigation to be carried out by or under the authority of any regulatory authority relating to any pension scheme which is mentioned in paragraph (ii) above. In addition, and without limiting the generality of the foregoing, the Company shall promptly notify the Administrative Agent if it or any of the other Loan Parties receives a Financial Support Direction or a Contribution Notice from the Pensions Regulator.
(j)Notwithstanding the foregoing or anything to the contrary herein or in any other Loan Document, no Loan Party shall be required to take any other actions other than those set forth in the definitions of Domestic Collateral and Guarantee Requirement, Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
(k)In addition, for the avoidance of doubt, no French Guarantor shall be under any obligation to grant security interest on any asset if it is determined by such French Guarantor that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered).
6.43.Maintenance of Ratings. The Company will use commercially reasonable efforts to (a) obtain credit ratings for the Credit Facilities from Moody’s and S&P within 45 days of the Closing Date and (b) cause to be maintained at all times (x) a corporate family rating, in the case of Moody’s and (y) an issuer credit rating, in the case of S&P, for the Company, but in the case of clauses (a) and (b), for the avoidance of doubt, not any specific rating.
6.44.Board Reporting. Together with its regularly delivered quarterly board materials, the Company, for itself and its Subsidiaries, will provide the Board of Directors with a report summarizing (i) intercompany Investments, (ii) prepayments of intercompany Indebtedness and (iii) incurrence and existence of intercompany Indebtedness.
6.45.Guaranties. The Company will cause (i) each applicable Wholly Owned Domestic Subsidiary (other than an Excluded Subsidiary) of the Company and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded debt of any (A) any Loan Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000) to guarantee the Obligations pursuant to a Guaranty and to satisfy the Collateral and Guarantee Requirements to the extent required by Section 2.18.
6.46.Merger; Consolidations; Fundamental Changes. The Company will not, nor will it permit any Subsidiary to, merge, amalgamate or consolidate with or into any other Person; provided that, so long as no Default or Unmatured Default shall have occurred and be continuing or would result therefrom, the Company may merge or consolidate with any other corporation and each Subsidiary may merge, amalgamate or consolidate with any other Person, provided, further, that (i) in the case of any such merger or consolidation involving the Company, the Company is the surviving corporation and continues to be organized in the United States, (ii) in the case of any such merger or consolidation involving the Borrower, the Borrower is the surviving corporation and continues to be organized in Germany, (iii) in the case of any such merger, amalgamation or consolidation involving a Guarantor that does not survive or continue following such merger, amalgamation or consolidation, the surviving or continuing Person assumes all of such Guarantor’s obligations under the Loan Documents and, if not already the Company or a Guarantor, becomes a Guarantor pursuant to documentation reasonably satisfactory to the Administrative Agent and such surviving or continuing Person shall be organized in the United States or a Specified Foreign Jurisdiction and (iv) any Disposition of a Subsidiary (other than, directly or indirectly, the Borrower) that is otherwise permitted under Section 6.14.
The Company will not, nor will it permit any Subsidiary to, liquidate or dissolve, provided that a Subsidiary (other than, directly or indirectly, the Borrower) may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the interest of the Company and is not materially disadvantageous to the Lenders (it being agreed that Guarantor that liquidates or dissolves shall transfer all of its assets to the Company or another Guarantor (or, in the case of a Guarantor that is a direct or indirect Subsidiary of the Borrower, to the Borrower or another Guarantor that is a direct or indirect Subsidiary of the Borrower), unless otherwise permitted pursuant to Section 6.15). 6.47.Sale of Assets. The Company will not, nor will it permit any Subsidiary to, Dispose of its Property, to any other Person, except:
(x)Sales and leases of inventory in the ordinary course of business;
(xi)Dispositions of assets that are obsolete, damaged, worn out or surplus, in each case in the ordinary course of business;
(xii)Dispositions of machinery, equipment or other fixed assets to the extent that (A) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 180 days or (B) the proceeds of such Disposition are applied to the purchase price of replacement assets within 180 days;
(xiii)Dispositions of cash, Cash Equivalents and the like in the ordinary course of business or in connection with cash management activities;
(xiv)Discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof and sales of accounts receivable in the ordinary course of business and at the request of the account debtor thereon to facilitate the processing and payment thereof;
(xv)Dispositions resulting from any taking or condemnation of any property of the Company or any Subsidiary by any Governmental Authority or any assets subject to a casualty;
(xvi)The lease or sublease of real property in the ordinary course of business and not constituting a sale and leaseback;
(xvii)Licenses and sublicenses of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business; provided, that such licensing or sublicensing of intellectual property is either (i) on a non-exclusive basis or (ii) exclusive only within the granted territory
(xviii)Dispositions or the lapse or abandonment (including failure to maintain) in the ordinary course of business of any intellectual property of the Company or any Subsidiary determined in the reasonable good faith judgment of the respective owner to be no longer useful, necessary, or otherwise material in the operation of the business of the Company or any Subsidiary;
(xix)Issuance of Capital Stock by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(xx)Dispositions constituting Investments permitted by Section 6.15, Dispositions constituting Restricted Payments permitted by Section 6.25 and Dispositions constituting mergers, consolidations, or fundamental changes permitted by Section 6.13; (xxi)Dispositions of any property, interests or assets (i) to any Loan Party and (ii) between Subsidiaries that are not Guarantors; provided that, prior to the date on which the Existing Term Loans are no longer outstanding, this clause (xii) shall not permit Dispositions from a Foreign Loan Party or any Subsidiary of a Foreign Loan Party to the Company or any Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose;
(xxii)the Company or any Subsidiary may consummate the concurrent purchase and sale or exchange of property useful in a similar business between the Company or any of its Subsidiaries and another person to the extent that the assets received by the Company or its Subsidiaries are of equivalent or greater fair market value than the assets transferred; provided that to the extent the assets Disposed of pursuant to this clause (xiii) constituted Collateral, the assets received by the Company or its applicable Subsidiary shall also constitute Collateral; (xxiii)Dispositions of treasury stock of the Company to Subsidiaries for use as consideration for acquisitions permitted under Section 6.15; (xxiv)Creation of Liens permitted by Section 6.16 and Dispositions in connection with such Liens; (xxv)Other Dispositions of Property that, together with all other Property of the Company and its Subsidiaries previously Disposed of in reliance upon this clause (xvi) during the twelve-month period ending with the most recent month prior to the month in which any such Disposition occurs for which financial statements of the Company have been delivered pursuant to Section 6.1(i) or (ii), did not constitute a Substantial Portion of the Property of the Company and its Subsidiaries as of the end of such most recent prior month; provided that, with respect to any Disposition made in reliance on this Section 6.14(xvi), (a) the consideration paid to the Company and its Subsidiaries in such Disposition is 100% cash or Cash Equivalents, (b) in the case of any such Disposition resulting in Net Cash Proceeds in excess of $50,000,000, on a Pro Forma Basis, the Company’s Total Net Leverage Ratio (without giving effect to any netting of cash received in connection with such Disposition) is less than or equal to such Total Net Leverage Ratio immediately prior to giving pro forma effect thereto (as determined in good faith by the Company), (c) except for a Disposition that is not an Asset Sale Prepayment Event, at least 85% of the Net Cash Proceeds thereof are not subject to reinvestment rights but instead used to prepay Term Loans pursuant to Section 2.6.5(b) (except to the extent not required pursuant to Section 2.6.11) and (d) the Net Cash Proceeds from any such Disposition (or series of related Dispositions) resulting in Net Cash Proceeds in excess of $75,000,000 are used to prepay Term Loans pursuant to Section 2.6.5(b) (except to the extent not required pursuant to Section 2.6.11), within 5 Business Days after receipt of the Company or a Subsidiary of such Net Cash Proceeds; and (xxvi)any surrender or waiver of contract rights or the settlement, release or surrender of any contract, tort or other litigation claims.
Notwithstanding anything in this Section 6.14 to the contrary, (x) no such Dispositions of property may be made (other than pursuant to clause (i) above) if any Default or, in the case of clause (xvi), Unmatured Default has occurred and is continuing and (y) no such Dispositions of Equity Interests in any Guarantor may be made to any Person if such Disposition would result in such Guarantor being prohibited by applicable law or regulations or by the terms of any binding contractual arrangement from providing its Guaranty hereunder and under the other Loan Documents unless such Guarantor ceases to be a Subsidiary of the Company as a result of such Disposition.
6.48.Investments and Acquisitions. The Company will not, nor will it permit any Subsidiary to, make any Investments or to make any Acquisition of any Person, except:
(xxvii)Investments in cash and Cash Equivalents;
(xxviii)Investments in the Company and the Subsidiaries (other than, prior to the date on which the Existing Term Loans are no longer outstanding, Investments from a Foreign Loan Party or any Subsidiary of a Foreign Loan Party in the Company or any Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose); provided that at no one time shall the aggregate outstanding principal amount of all Investments made by a Loan Party in an External Subsidiary on or after October 20, 2022 in reliance on this clause (ii) exceed the sum of (x) $10,000,000 and (y) cash and Cash Equivalents received by a Loan Party on or after October 20, 2022 from one or more External Subsidiaries; provided that the outstanding principal amount of Investments made in reliance on clause (x) shall be (without duplication) reduced by the amount of capital returned (exclusive of items reflected in Consolidated Net Income) to a Loan Party from any such Investments made in reliance on such clause, which reductions may not exceed in aggregate amount the amount originally invested;
(xxix)Investments in existence on October 20, 2022 and set forth on Schedule 6.15;
(xxx)other intercompany Investments made by a Loan Party in an External Subsidiary in connection with ordinary course cash management activities; provided that any Investment in respect of cash management operations that exceeds $10,000,000 will only be permitted to the extent that the Company reports such Investment to the Board of Directors in the regular fiscal quarter reporting immediately following such Investment in compliance with Section 6.11;
(xxxi)to the extent constituting an Investment, the New Term Loan Paydown;
(xxxii)Investments received as part of the settlement of litigation or in satisfaction of extensions of credit to any Person pursuant to the reorganization, bankruptcy or liquidation of such Person or a good faith settlement of debts with such Person;
(xxxiii)Investments received in settlement of amounts due to the Company or any Subsidiary effected in the ordinary course of business;
(xxxiv)so long as no Default or Unmatured Default has occurred and is continuing or would be caused thereby, other Investments made with cash, Cash Equivalents or with assets that do not (and are not required hereunder or under any other Loan Document to) constitute Collateral provided that the aggregate amount of such Investments made (net of any return in cash (including via book entry) of the principal amount thereof) does not exceed $35,000,000;
(xxxv)Investments by the Company or any of its Subsidiaries in exchange for consideration consisting only of Capital Stock (other than Disqualified Stock) of the Company or Net Cash Proceeds of a substantially concurrent sale of Capital Stock (other than Disqualified Stock) of the Company;
(xxxvi)Investments by the Company or any of its Subsidiaries in payroll, commission, travel and similar advances to cover matters that are reasonably expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(xxxvii)Investments by the Company or any of its Subsidiaries in the form of loans or advances to employees, officers or directors of the Company or any Subsidiary (i) in the ordinary course of business or (ii) in an aggregate amount not to exceed $5,000,000 (including, for the avoidance of doubt, any such Investments existing as of the Closing Date) at any one time outstanding to fund the purchase of Capital Stock of the Company by such Persons;
(xxxviii)Investments made by the Company or any of its Subsidiaries in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Company and its Subsidiaries in connection with such plans;
(xxxix)Receivables owing to the Company and extensions of trade credit in the ordinary course of business;
(xl)[reserved];
(xli)Investments consisting of licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business; provided, that such licensing, sublicensing or contribution of intellectual property is either (i) on a non-exclusive basis or (ii) exclusive only within the granted territory;
(xlii)any Investment consisting of cash deposits (including escrowed deposits) pursuant to binding commitments of the Company or its Subsidiaries in effect with respect to (i) issuances or refinancings of Indebtedness otherwise permitted hereunder and (ii) Acquisitions permitted hereunder and not yet consummated; and
(xliii)prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business.
Any Investment in any Person other than a Loan Party that is otherwise permitted by this Section 6.15 may be made through substantially concurrent intermediate Investments in Subsidiaries that are not Loan Parties that are part of the same transaction or series of related transactions, and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in
the form of cash or Cash Equivalents shall be the fair market value thereof valued at the time of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
For purposes of determining compliance with this Section 6.15, if an Investment meets, in whole or in part, the criteria of one or more of the categories of Investments (or any portion thereof) permitted in this Section 6.15, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such Investment (or any portion thereof) in any manner that complies with this Section 6.15 and will be entitled to only include the amount and type of such Investment (or any portion thereof) in one of the above clauses and such Investment will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof). 6.49.Liens. The Company will not, nor will it permit any Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the Property of the Company or any of its Subsidiaries, except:
(xliv)(a) Permitted Encumbrances, (b) Liens, if any, created under the Loan Documents (including Liens created under the Security Documents securing Obligations) and (c) subject to the Intercreditor Agreements, Liens on the Collateral securing obligations in respect of Indebtedness outstanding pursuant to clauses (b), (c), (d), (e), (f) and (g) of Section 6.18(i);
(xlv)Liens existing on the Closing Date and described on Schedule 6.16, but not including any subsequent increase in the principal amount secured thereby; (xlvi)[reserved];
(xlvii)[reserved];
(xlviii)[reserved];
(xlix)Liens in favor of financial institutions against cash pooling arrangements or bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business and consistent with standard business practices in such foreign jurisdiction, provided that any such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or its Subsidiaries;
(l)Liens customary in the banking industry constituting a right of set-off, revocation, refund or chargeback under a customary deposit agreement or under the Uniform Commercial Code of a bank or other financial institution (or similar Liens of non-U.S. financial institutions) incurred in the ordinary course of business where deposits are maintained by the Company or any Subsidiary;
(li)[reserved];
(lii)any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Company or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(liii)Liens on assets and property of Foreign Subsidiaries securing Indebtedness and other obligations of such Foreign Subsidiaries in an aggregate outstanding amount not to exceed $10,000,000 at any one time;
(liv)Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by 6.18(xix), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Company or any Subsidiary; (lv)Liens arising from filing UCC (or PPSA or similar law of any jurisdiction) financing statements or similar public filings, registrations or agreements in foreign jurisdiction regarding leases and consignment or bailee arrangements in the ordinary course of business permitted or not prohibited by any of the Loan Documents and Liens securing liabilities in respect of indemnification obligations thereunder as long as each such Lien only encumbers the assets that are the subject of the related lease (or contained in such leasehold) or consignment or bailee, and other precautionary statements, filings or agreements;
(lvi)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation and exportation of goods in the ordinary course of business;
(lvii)Liens on cash or Cash Equivalents permitted by Section 6.15 securing Swap Agreements in the ordinary course of business submitted for clearing in accordance with applicable law;
(lviii)Liens in favor of a Loan Party; provided that, prior to the date on which the Existing Term Loans are no longer outstanding, this paragraph (xv) shall not permit Liens granted by a Foreign Loan Party or any Subsidiary of a Foreign Loan Party to the Company or a Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose;
(lix)Liens in favor of a commodity, brokerage or security intermediary who holds a commodity, brokerage or, as applicable, a security account on behalf of the Company or a Subsidiary provided such Lien encumbers only the related account and the property held therein and relates to the security for the activities associated with such account;
(lx)Liens on deposits or other amounts held in escrow to secure contractual payments (contingent or otherwise) payable by the Company or its Subsidiaries to a seller after the consummation of an Acquisition;
(lxi)Liens not otherwise permitted by the foregoing provisions of this Section 6.16, provided that (1) the aggregate outstanding amount secured by all such Liens shall not at any time exceed $25,000,000 (2) [reserved], (3) at the time of such incurrence and immediately after giving effect thereto, no Default or Unmatured Default shall have occurred or be continuing and (4) to the extent any Liens on the Collateral outstanding under this clause (xviii) secure any Indebtedness for borrowed money, (x) the aggregate outstanding amount secured by all such Liens shall not at any time exceed $10,000,000 and (y) the Company, the applicable Loan Parties and the Agents shall enter into an intercreditor agreement in form and substance reasonably satisfactory to the Agents providing for such Indebtedness to be secured on a junior basis to
(I) the Liens securing the Obligations, (II) the Liens securing the New Term Loan Facility and (III) the Liens securing the 2025 Notes (and the Lenders hereby authorize the Agents to negotiate and enter into any such documentation);
(lxii)Liens on Collateral securing obligations in respect of any Bi-lateral LC/WC Agreement outstanding pursuant to Section 6.18(xxii); provided that, either (x) the obligations under such Bi-lateral LC/WC Agreement shall constitute “Obligations” (as defined under the ABL Facility) or (y) a representative for the holders thereof shall have entered into an intercreditor agreement in form and substance reasonably satisfactory to the Agents (acting at the direction of the Required Lenders); and (lxiii)Liens on Collateral securing obligations in respect of Permitted Refinancing Indebtedness permitted to be outstanding under this Agreement and to the extent such Liens are permitted pursuant to the proviso to clause (e) of the definition of “Permitted Refinancing Indebtedness”.
For purposes of determining compliance with this Section 6.16, if a Lien meets, in whole or in part, the criteria of one or more of the categories of Liens (or any portion thereof) permitted in this Section 6.16, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such Lien (or any portion thereof) in any manner that complies with this Section 6.16 and will be entitled to only include the amount and type of such Lien or liability secured by such Lien (or any portion thereof) in one of the above clauses and such Lien will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof). 6.50.Affiliates. The Company will not, and will not permit any Subsidiary to, enter into any transaction (including, without limitation, the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate unless such transaction, payment or transfer is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the Company and/or such Subsidiary, (c) solely between or among the Company and the other Guarantors, or solely among non- Borrower, non-Guarantor Subsidiaries, (d) upon fair and reasonable terms (taken as a whole) not materially less favorable to the Company or such Subsidiary than the Company or such Subsidiary would obtain in a comparable arms-length transaction; provided, that (x) in the event such transaction involves an aggregate consideration in excess of $30,000,000, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (d)) and (y) in the event such transaction involves an aggregate consideration in excess of $50,000,000, the Company has received a written opinion from an Independent Financial Advisor stating that such transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate, (e) a Restricted Payment permitted by Section 6.25 or (f) an Investment permitted by Section 6.15; provided that any Investment in an External Subsidiary will be made on commercially reasonable terms.
6.51.Indebtedness. The Company will not, and will not permit any Subsidiary, to create, incur or suffer to exist any Indebtedness, except:
(lxiv)(a) The Loans and the other Obligations under the Loan Documents, (b) Indebtedness of the Company and the other Loan Parties under the ABL Facility, the guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount or liquidation preference, if applicable, not to exceed at any one time outstanding $250,000,000; (c) Indebtedness of the Company and the other Loan Parties under the New Term Loan Facility in the aggregate principal amount outstanding on the Closing Date (after giving effect to the
Transactions, including the Initial New Term Loan Paydown), (d) Indebtedness of the Company and the other Loan Parties under the Existing Term Loan Facility in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions), (e) Indebtedness of the Company and the other Loan Parties under the 2024 Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions), (f) Indebtedness of the Company and the other Loan Parties under the 2025 Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions) and (g) Indebtedness of the Company and the other Loan Parties under the New 2L Notes in an aggregate principal amount equal to the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions) plus any additional principal amount incurred pursuant to the payment-in-kind or capitalization of periodic interest due on the New 2L Notes plus any additional principal amount incurred pursuant to a Registered Exchange Offer in accordance with Section 6.33;
(lxv)Indebtedness of the Company and its Subsidiaries existing as of the Closing Date (other than Indebtedness outstanding pursuant to clauses (i)(b), (i)(c), (i)(d), (i)(e), (i)(f) and (i)(g) above) and set forth on Schedule 6.18; (lxvi)Indebtedness consisting of avals by any of the Company or its Subsidiaries for the benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the Company or its Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices;
(lxvii)[reserved];
(lxviii)Any Permitted Refinancing Indebtedness in respect of any Indebtedness referred to in clauses (i)(b), (i)(c), (i)(f), (i)(g) or (ii) above; (lxix)Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(lxx)Indebtedness (other than Indebtedness for borrowed money) arising from agreements of the Company or a Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection any acquisition or Disposition otherwise permitted under this Agreement;
(lxxi)Indebtedness Incurred by the Company or its Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(lxxii)[reserved];
(lxxiii)Indebtedness incurred in the ordinary course of business in connection with cash pooling arrangements and cash management incurred in the ordinary course of business in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto;
(lxxiv)Indebtedness in respect of performance, surety, customs and appeal bonds, or any indemnity agreement related thereto, arising in the ordinary course of business;
(lxxv)Other Indebtedness of the Company and its Subsidiaries; provided that, at the time of the creation, incurrence or assumption of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other Indebtedness does not exceed an amount equal to $50,000,000;
(lxxvi)Guarantee Obligations in respect of Indebtedness permitted under this Section 6.18; provided that (a) if any Indebtedness that is Guaranteed is subordinated to the Obligations then any Guarantee Obligations in respect of such Indebtedness shall be subordinated to the Obligations of the applicable Loan Party to the same extent and on terms not materially less favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Obligations, (b) no such permitted Indebtedness in respect of the 2025 Notes, New 2L Notes, New Term Loans, Existing Term Loans and/or the ABL Facility (or in each case any Permitted Refinancing Indebtedness thereof) shall be Guaranteed by any Subsidiary unless such Subsidiary has Guaranteed the applicable Obligations pursuant to a Guaranty, (c) such Guarantee Obligations shall be incurred in compliance with Section 6.15, (d) no Indebtedness of a Loan Party, other than any Indebtedness permitted pursuant to Section 6.18(i), (ii) or (v), shall be Guaranteed by another Loan Party and (e) no such permitted Indebtedness of an External Subsidiary shall be Guaranteed by a Loan Party unless otherwise permitted pursuant to Section 6.15; (lxxvii)Indebtedness consisting of the financing of insurance premiums;
(lxxviii)Indebtedness in respect of Swap Agreements permitted by Section 6.21;
(lxxix)Indebtedness among the Company and its Subsidiaries (including between or among Subsidiaries) incurred in accordance with Section 6.15;
(lxxx)other Indebtedness (a) that is unsecured or, if secured, secured on a junior basis to the Obligations and the obligations under the ABL Facility, the New Term Loans, the 2025 Notes and the New 2L Notes on substantially similar terms on which the New 2L Notes are subordinated to the Obligations and the obligations under the ABL Facility, the New Term Loans and the 2025 Notes, (b) that is expressly subordinated to the prior payment in full in cash of all Obligations and the obligations under the ABL Facility, the New Term Loans, the 2025 Notes and the New 2L Notes, (c) that does not require any mandatory payments in cash prior to the Maturity Date or the maturity date applicable to the ABL Facility, the New Term Loans, the 2025 Notes and the New 2L Notes, (d) the final maturity date and weighted average life of which is no earlier than the Maturity Date and then remaining weighted average life of the Term Loans, (e) the terms of which are no more restrictive to the Company and its Subsidiaries than those under this Agreement and (f) the proceeds of which are used to prepay or repay amounts outstanding under the Existing Term Loan Facility or the 2024 Notes;
(lxxxi)[reserved];
(lxxxii)Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Finance Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof (and not in contemplation thereof), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause shall not exceed $20,000,000 at any time outstanding;
(lxxxiii)Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(lxxxiv)any Indebtedness, liability or other obligations arising under or in connection with a declaration of joint and several liability (hoofdelijke aansprakelijkheid) issued by a Dutch Loan Party in respect of another Loan Party as referred to in Section 2:403 of the Dutch Civil Code (including any residual liability (overblijvende aansprakelijkheid) under such declaration arising pursuant to Section 2:404(2) Dutch Civil Code); and
(lxxxv)Indebtedness consisting of Bi-lateral LC/WC Agreements in an aggregate maximum principal exposure amount at any one time up to $55,000,000.
Notwithstanding anything in this Section 6.18 to the contrary, (x) any Indebtedness owing by any Loan Party to any External Subsidiary shall be (a) unsecured and (b) expressly subordinated to the prior payment in full in cash of all Obligations; provided that such Indebtedness shall be incurred in compliance with Section 6.15, (y) any such Indebtedness owing by any Foreign Subsidiary to any Domestic Subsidiary shall be expressly subordinated to the prior payment in full in cash of all Obligations and (z) any intercompany Indebtedness that exceeds $10,000,000 will only be permitted to the extent that the Company reports such Indebtedness to the Board of Directors in the regular fiscal quarter reporting immediately following the incurrence of Indebtedness that caused aggregate intercompany Indebtedness to exceed $10,000,000 in compliance with Section 6.11.
The accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, the payment of dividends on Disqualified Equity Interests in the form of additional shares of Disqualified Equity Interests, accretion or amortization of original issue discount or liquidation preferences and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the Exchange Rate or currencies will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.18. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a consolidated balance sheet of the Company dated such date prepared in accordance with GAAP. This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.
Further, for purposes of determining compliance with this Section 6.18, if an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Indebtedness (or any portion thereof) permitted by this Section 6.18, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.18 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding under this Agreement and all Indebtedness (other than in respect of Swap Agreements, Bi-lateral LC/WC Agreements and ordinary course cash management obligations) permitted to be
incurred or outstanding pursuant to Section 6.18(i)(a), (i)(b), (i)(c), (i)(d), (i)(e), (i)(f) or (i)(g) shall at all times be deemed to have been incurred pursuant to Section 6.18(i)(a), (i)(b), (i)(c), (i)(d), (i)(e), (i)(f) or (i)(g), as applicable.
6.52.Negative Pledge Clauses. The Company will not, and will not permit any Subsidiary to, enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of the Company or any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, other than (a) restrictions and conditions in this Agreement, the other Loan Documents, any Indebtedness permitted by Section 6.18(i), any credit agreements, indentures or similar agreements governing Indebtedness permitted to be incurred or outstanding pursuant to Section 6.18 to the extent such agreements contain applicable Lien restrictions, in the good faith determination of the Company, not materially less favorable to the Lenders than those contained in customary documentation governing similar Indebtedness in the market at the time of such incurrence, and any Permitted Refinancing Indebtedness in respect thereof, (b) customary restrictions and conditions contained in agreements relating to Dispositions permitted by Section 6.14 pending the consummation of such Dispositions, (c) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness or the Persons obligated thereon, (d) customary provisions in leases and other contracts restricting the assignment, subletting or other transfer thereof (including the granting of any Lien), (e) restrictions or conditions imposed by restrictions on cash and other deposits or net worth provisions in leases and other agreements entered into in the ordinary course of business, (f) restrictions and conditions binding on a Subsidiary or its assets at the time such Subsidiary first becomes a Subsidiary or such assets were first acquired by such Subsidiary (other than a Subsidiary that was a Subsidiary on the Closing Date or assets owned by any Subsidiary on the Closing Date), so long as such contractual obligations were not entered into solely in contemplation of such Person becoming a Subsidiary or assets being acquired, (g) customary provisions in partnership agreements, limited liability company governance documents, joint venture agreements and other similar agreements that restrict the transfer of assets of, or ownership interests in, the relevant partnership, limited liability company, joint venture or similar Person, (h) [reserved], (i) with respect to bank deposit accounts, cash sweep arrangements, cash management services or cash pooling arrangements, conditions that require consent of the bank before any lien or pledge arrangement securing obligations and liabilities of the Company or any Subsidiary are enacted (with each of the foregoing being within the general parameters customary in the banking industry or arising pursuant to the applicable banking institution’s general terms and conditions) or (j) restrictions in respect of assets that, taken as a whole, are immaterial, provided that in good faith judgment of the Company, such conditions would not have a material adverse effect on the ability of the Borrower to satisfy its Obligations hereunder.
6.53.Limitation on Restrictions on Subsidiary Distributions. The Company will not, and will not permit any Subsidiary to, enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the Company to (i) pay dividends or make any other distributions in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, any Loan Party, (ii) make loans or advances to or Investments in any Loan Party or (iii) transfer any of its assets to any Loan Party, except for such encumbrances or restrictions existing under or by reason of (a) restrictions and conditions existing under the Loan Documents, any other Indebtedness permitted by Section 6.18(i), any credit agreements, indentures or similar agreements governing Indebtedness permitted to be incurred pursuant to Section 6.18 to the extent such agreements’ applicable restrictions will not materially impair the Borrower’s ability to make principal or interest payment on the Loans, and any Permitted Refinancing Indebtedness in respect thereof, (b) any restrictions with respect to a Subsidiary imposed pursuant to an agreement which has been entered into in connection with the disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, (c) any restrictions with respect to assets encumbered by a Lien permitted by Section 6.16 so long as such restriction applies only to the assets encumbered by such permitted Lien, (d) to the extent required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary of which less than 90% of the Voting Stock is owned by the Company or any of its Subsidiaries, (e) [reserved], (f) applicable Requirements of Law, (g) customary restrictions and conditions contained in any agreement relating to the Disposition of any property not prohibited by Section 6.14 pending the consummation of such Disposition, (h) any agreement in effect at the time a Subsidiary becomes a Subsidiary of the Company, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a Subsidiary of the Company, (i) any instrument governing Indebtedness assumed in connection with any permitted Acquisition and permitted pursuant to Section 6.18, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; or (j) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to in clauses (b), (h) or (i) above; provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing; provided, further, that this Section 6.20 shall not apply to encumbrances or restrictions (x) arising by reason of customary non-assignment or no-subletting clauses in leases or other contracts entered into in the ordinary course of business and consistent with past practices or (y) in agreements governing any Indebtedness permitted pursuant to Section 6.18(xix) otherwise permitted hereby and covering only those assets financed by such Indebtedness.
6.54.Swap Agreements. The Company will not, and will not permit any Subsidiary to, enter into or remain a party to any Swap Agreement for purposes of financial speculation.
6.55.[Reserved].
6.56.[Reserved].
6.57.[Reserved].
6.58.Restricted Payments. The Company will not, and will not permit any Subsidiary to, declare or pay any dividend (other than dividends payable solely in Capital Stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Company or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any Subsidiary (collectively, “Restricted Payments”), except:
(a)any Subsidiary may make Restricted Payments to the Company, the Borrower or another Subsidiary; provided that, in the case of Restricted Payments to (i) any Subsidiary, the Capital Stock of which is not 100% pledged as Collateral or (ii) an External Subsidiary, such Subsidiary shall receive no more than such Subsidiary’s ratable share of the Restricted Payment;
(b)[reserved];
(c)the Company may make payments in cash in lieu of the issuance of fractional shares or may repurchase partial interests in its Capital Stock for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Capital Stock;
(d)repurchases of Capital Stock deemed to occur as a result of Capital Stock being utilized to satisfy tax withholding obligations upon (A) the exercise of stock options or (B) the vesting of other equity awards that constitute Capital Stock;
(e)the Company may repurchase its Capital Stock upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Company accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Capital Stock;
(f)the Company may pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock of the Company (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Company or any of its Subsidiaries (or the estate, heirs, family members or former family members of any of the foregoing) (collectively, “Covered Persons”); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Unmatured Default or Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (f) in any fiscal year does not exceed (x) $2,500,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from the immediately preceding fiscal year (but not fiscal years ended prior to the Closing Date) which was not expended by the Company for Restricted Payments in such fiscal year (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (f) in such fiscal year) plus (z) the net cash proceeds of any “key-man” life insurance policies of the Company or any of its Subsidiaries that have not been used to make any repurchases, retirements or acquisitions under this clause (f); provided, further, that cancellation of Indebtedness owing to the Company or any Subsidiary from Covered Persons in connection with a repurchase of such securities of the Company will not be deemed to constitute a Restricted Payment for purposes of this Section 6.25; (g)provided no Unmatured Default or Default has occurred and is continuing, Restricted Payments made in cash, Cash Equivalents or with assets that do not (and are not required hereunder or under any other Loan Document to) constitute Collateral may be made in an aggregate amount not to exceed $15,000,000;
(h)Restricted Payments to the extent required to consummate the New Term Loan Paydown;
(i)[reserved];
(j)[reserved]; and
(k)Restricted Payments pursuant to the Diebold, Incorporated 2014 Non-Qualified Stock Purchase Plan (or any successor thereto) in an aggregate amount (net of employee contributions) not to exceed $2,000,000 in any fiscal year.
Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.25 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Section 6.25 (it being understood that such Restricted Payment shall be deemed to have been made on the date of declaration or notice for purposes of such provision).
6.59.Certain Payments of Indebtedness. The Company will not, and will not permit any Subsidiary to, make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to Junior Debt and in each case any Permitted Refinancing Indebtedness in respect thereof (collectively, the “Restricted Indebtedness”) except for (a) payments, prepayments, repurchases or redemptions, or other optional or voluntary defeasements, with the proceeds of any Permitted Refinancing Indebtedness in respect of such Restricted Indebtedness that is permitted by Section 6.18, (b) payments, prepayments, repurchases or redemptions, or other optional or voluntary defeasements with prepayment amounts declined by Term Lenders pursuant to Section 2.6.11; (c) payments, repurchases or redemptions of amounts outstanding under the Existing Term Loan Facility or the 2024 Notes with amounts actually received (x) by the Company from and after the Closing Date to such date from any capital contributions to, or the sale or issuance of Equity Interests of, the Company (other than (i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interest the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than such amounts outstanding under the Existing Term Loan Facility or the 2024 Notes, as applicable)) or (y) by the Company or a Subsidiary from the Incurrence of Indebtedness pursuant to Section 6.18(xvii); (d) payments, repurchases or redemptions of the New 2L Notes with the Net Cash Proceeds actually received by the Company from and after the Closing Date to such date from any capital contributions to, or the sale or issuance of Equity Interests of, the Company (other than (i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than such New 2L Notes)) not in excess of $100,000,000, (e) payments, repurchases or redemptions of the 2024 Notes in connection with the Registered Exchange Offer and (f) repayments of intercompany Indebtedness (i) owing to the Company, the Borrower or another Loan Party (except, solely until the date on which the Existing Term Loans are no longer outstanding, other than in the ordinary course of business or for a bona fide business purpose, owing to Company, the Borrower or another Loan Party from a Foreign Loan Party), (ii) owing to an External Subsidiary from another External Subsidiary and (iii) owing to an External Subsidiary from a Loan Party in connection with ordinary course cash management activities; provided that any repayments of intercompany Indebtedness that exceeds $10,000,000 will only be permitted to the extent that the Company reports such repayments to the Board of Directors in the regular fiscal quarter reporting immediately following such repayment that caused aggregate intercompany repayments to exceed $10,000,000 in compliance with Section 6.11.
6.60.Amendments to Organizational Documents. The Company will not, and will not permit any Loan Party to amend, supplement, terminate, replace or waive or otherwise modify any Organizational Document of the Company or any Loan Party in a manner, taken as a whole, that is materially adverse to the interests of the Lenders.
6.61.Additional Covenants. If at any time after the date hereof the Company, the Borrower or any Guarantor shall become party to any instrument or agreement (including all such instruments or agreements in existence as of the date hereof) in respect of the ABL Facility, the New Term Loans, the 2025 Notes, the New 2L Notes and/or other material indebtedness for borrowed money with an outstanding individual principal or outstanding committed amount in excess of $50,000,000, and in each case any Permitted Refinancing Indebtedness in respect thereof, that includes any guarantee, security or financial covenants (other than any financial covenants set forth in the ABL Facility Documentation) or defaults (in each case solely to the extent then in effect) not substantially provided for in this Agreement or more favorable in any material manner to the lenders or holders thereunder than those provided for in this Agreement, then the Company shall promptly so advise the Administrative Agent at least five Business Days prior (or such later date as is acceptable to the Administrative Agent (acting at the direction of the Required Lenders)) to entering into any such instrument or agreement and provide the Administrative Agent with true and complete copies of such instrument or agreement after the execution thereof. Thereupon, if the Administrative Agent or the Required Lenders shall request, the Borrower shall enter into an amendment to this Agreement or an additional agreement (as the Administrative Agent may request), providing for substantially the same such guarantee, security or financial covenants or defaults as provided for in such instrument or agreement to the extent required and as may be selected by the Administrative Agent.
6.62.DAC6. The Company shall supply to the Administrative Agent (in sufficient copies for all the Lenders if the Administrative Agent so requests): (i) promptly upon the making of such analysis or the obtaining of such advice, any analysis made or advice obtained on whether any transaction contemplated by the Loan Documents or any transaction carried out (or to be carried out) in connection with any transaction contemplated by the Loan Documents contains a hallmark as set out in Annex IV of DAC6 and (ii) promptly upon the making of such reporting and to the extent permitted by applicable law and regulation, any reporting made by any governmental or taxation authority by or on behalf of the Company or any of its Subsidiaries or by any adviser to such Person in relation to DAC6 or any law or regulation which implements DAC6 and any unique identification number issued by any governmental or taxation authority to which any such report has been made (if available).
6.63.[Reserved].
6.64.[Reserved].
6.65.Certain Post-Closing Obligations.
(a)As promptly as practicable, and in any event within the time periods after the Closing Date specified in Schedule 6.32 or such later date as the Administrative Agent acting at the direction of the Required Lenders reasonably agrees to in writing, the Company, the Borrower and each other Loan Party, as applicable, shall deliver the documents or take the actions specified on Schedule 6.32 that would have been required to be delivered or taken on the Closing Date but for the proviso to Section 4.1(f), in each case except to the extent otherwise agreed by the Administrative Agent and the Collateral Agent (acting at the direction of the Required Lenders) pursuant to their authority as set forth in the definitions of “Domestic Collateral and Guarantee Requirement” and “Canadian Collateral and Guarantee Requirement” and the Agreed Security Principles.
6.66.Registered Exchange Offer for 2024 Notes and Contingent Equity Raise.
(a)The Company shall (i) use reasonable best efforts, consistent with applicable securities laws, to file a Form S-4 by February 14, 2023 for a registered exchange of 2024 Notes held by holders that did not, or were not eligible to, participate in the 2024 Consent Solicitation and Exchange Offer for Units comprised of New 2L Notes and Warrants (the “Registered Exchange Offer”), on the terms contemplated for such Registered Exchange Offer in the Transaction Support Agreement, (ii) use reasonable best efforts, consistent with applicable securities laws, to launch the Registered Exchange Offer as soon as practicable but no later than March 15, 2023 and (iii) consummate the Registered Exchange Offer as soon as practicable but no later than May 30, 2023, subject to extension for SEC review period but in any event no later than June 30, 2023.
(b)The Company shall use reasonable best efforts to maximize participation in the Registered Exchange Offer by retail holder of 2024 Notes, which shall include, as part of the Registered Exchange Offer, providing for a soliciting broker fee payable to retail brokers that are appropriately designated by their tendering holder clients to receive such fee.
(c)If, after the 2024 Consent Solicitation and Exchange Offer and Registered Exchange Offer have been consummated, more than $20 million of principal amount of 2024 Notes have not been exchanged for New 2L Notes and Warrants pursuant to the 2024 Consent Solicitation and Exchange Offer or Registered Exchange Offer (such 2024 Notes in excess of $20 million, the “Excess Stub Notes”), the Company shall, no later than April 15, 2024 actually receive capital contributions to, or the proceeds of the sale or issuance of Equity Interests of, the Company (other than (i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than Excess Stub Notes)) in an amount sufficient to repurchase, redeem, prepay or pay in full the principal amount (and any other accrued and unpaid fees or expenses that remain unpaid at the time of repurchase, redemption, prepayment or payment in full) of the Excess Stub Notes, and proceeds of such equity capital raise shall be used to repurchase, redeem, prepay or pay in full the Excess Stub Notes prior to April 15, 2024.
ARTICLE VII DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
7.1.Any representation or warranty made or deemed made by or on behalf of the Company or its Subsidiaries to the Lenders or the Administrative Agent or the Collateral Agent in any Loan Document, in connection with any Loan, or in any certificate or information delivered in writing in connection with any Loan Document, shall be false in any material respect on the date as of which made.
7.2.Nonpayment of principal of any Loan when due, or nonpayment of interest on any Loan or of any commitment or ticking fee within five Business Days after written notice from the Administrative Agent that the same has become due, or nonpayment of any other obligations under any of the Loan Documents within five Business Days after written notice from the Administrative Agent that the same has become due.
6.17, 6.18, 6.19, 6.20, 6.21, 6.25, 6.26, 6.27, 6.28, 6.32, and/or 6.33.
7.4.The breach by any Loan Party of, or other default by any Loan Party under, any of the terms or provisions of this Agreement or any other Loan Document (other than a breach or default which constitutes a Default under Sections 7.1, 7.2 or7.3) which is not remedied within 30 days after written notice from the Administrative Agent. 7.5.Failure of the Company or any of its Subsidiaries to pay when due any principal of, or premium or interest on (beyond any applicable grace period therefor) any Indebtedness or net obligations under any Swap Agreement to the extent such Indebtedness and/or net obligations aggregate in excess of $50,000,000 (“Material Indebtedness”); or the default by the Company or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is governed, or any other event shall occur or condition exist, the effect of which is to cause, or to permit the holder or holders of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity; or any Material Indebtedness of the Company or any of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment) prior to the stated maturity thereof; provided that, notwithstanding anything set forth herein, a breach of the financial covenant under Section 6.1 of the ABL Facility shall not constitute a Default under this Section 7.5 unless and until the ABL Facility Administrative Agent or the requisite lenders under the ABL Facility shall have terminated the commitments thereunder or accelerated any ABL Facility Loans and declared such ABL Facility Loans due and payable in accordance with the terms of the ABL Facility Documentation (which such Default shall terminate automatically and immediately upon the requisite lenders under the ABL Facility rescinding such acceleration and/or waiving such event of default under the ABL Facility in accordance with the terms thereof).
7.6.The Company or any of its Subsidiaries (other than an Immaterial Subsidiary), shall (i) voluntarily have an order for relief entered with respect to it under any existing or future Debtor Relief Law, (ii) make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, interim receiver, monitor, administrator, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under any existing or future Debtor Relief Law, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, administration, reorganization, moratorium, arrangement, adjustment or composition of it or its debts or seeking similar relief under any Debtor Relief Law or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate, company or other action to authorize or effect any of the foregoing actions set forth in this Section 7.6, and in each case provided that any of the foregoing actions shall not constitute a Default if this would constitute a breach section 44 of the German Act on the Stabilisation and Restructuring Framework for Businesses (StaRUG) (vi) fail to contest in good faith any appointment or proceeding described in Section 7.7, (vii) not pay, or admit in writing its inability to pay, its debts generally as they become due, or (viii) with respect to any Subsidiary (other than an Immaterial Subsidiary) incorporated in Germany is illiquid (zahlungsunfähig), pending illiquid (drohend zahlungsunfähig) or over indebted within the meaning of sections 17 to 19 of the German insolvency code (Insolvenzordnung). 7.7.Without its application, approval or consent, a receiver, interim receiver, monitor, administrator, trustee, examiner, liquidator or similar official shall be appointed for the Company or any of its Subsidiaries (other than an Immaterial Subsidiary) or any Substantial Portion of their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against the Company or any of its Subsidiaries (other than an Immaterial Subsidiary) and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days. In case of the Borrower or any German Guarantor, (i) it commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or, (ii) for any of the reasons set out in sections 17 to 19 of the German InsO. (A) it files for insolvency (Antrag auf Eröffnung eines Insolvenzverfahrens) or any Director is required by law to file for insolvency; or (B) the competent court takes any of the actions set out in section 21 of the German InsO or the competent court institutes or rejects (for reason of insufficiency of its funds to implement such proceedings) insolvency proceedings against any such company (Eröffnung des Insolvenzverfahrens).
7.8.Any court, government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion or is reasonably likely to have a Material Adverse Effect.
7.9.One or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (other than judgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment which is not effectively stayed for a period of 30 consecutive days.
7.10.Any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of
$50,000,000 which it shall have become liable to pay under Title IV of ERISA or Sections 412, 430, 431 or 432 of the Code; or notice of intent to terminate a Plan with Unfunded Liabilities in excess of $50,000,000 (a “Material Plan”) shall be filed under Section 4041(c) of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under
Section 4007 of ERISA) in excess of $50,000,000 in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, that Material Plan; or the determination by the PBGC of liability in excess of $50,000,000 on any member of the Controlled Group pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to one or more Multiemployer Plans which causes one or more members of the Controlled Group to incur a payment obligation in excess of $50,000,000; there shall occur a Foreign Plan Event or Canadian Pension Event which causes one or more members of the Controlled Group to incur liability in excess of $50,000,000.
7.11.The Company or any of its Subsidiaries shall be the subject of any proceeding or investigation related to any Environmental Law or Hazardous Substance, including pertaining to the Release by the Company or any of its Subsidiaries or any other Person of any Hazardous Substance, or any violation of any applicable Environmental Law, which, in either case, could reasonably be expected to have a Material Adverse Effect.
7.12.The occurrence of any Change of Control.
7.13.On and after the Closing Date, any Lien purported to be created on any material portion of the Collateral under any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected Lien on such Collateral (subject to Liens Permitted under Section 6.16), except in connection with a release of such Collateral in accordance with the terms of this Agreement. 7.14.This Agreement, any Guaranty or any Security Document (after effectiveness thereof) shall for any reason cease to be in full force and effect and valid, binding and enforceable in accordance with its terms after its date of execution, or any Loan Party shall so state in writing, in each case other than in connection with a release of any Guaranty or security interest in accordance with the terms of this Agreement.
7.15.In relation to the Wincor Nixdorf Defined Benefit Pension Scheme, the Pensions Regulator issues a Financial Support Direction, a Contribution Notice or any other direction, notice, penalty, fine, order or requirement to the Company or any other Loan Party unless the aggregate liability of the Company and the other Loan Parties under all Financial Support Directions, Contribution Notices, directions, notices, penalties, fines, orders or requirements is less than $6,000,000.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.4.Acceleration.
(a)If any Default described in Section 7.6 or 7.7 occurs, the obligations of the Lenders to make Loans hereunder and the Commitments shall automatically terminate and the Obligations, including any Prepayment Premium, shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which the Borrower hereby expressly waives and without any election or action on the part of the Administrative Agent or any Lender. (b)If any Default occurs and is continuing (other than a Default described in Section 7.6 or 7.7), the Required Lenders may terminate or suspend the obligations of the Lenders to make Loans and the Commitments hereunder, or declare the Obligations, including any Prepayment Premium, to be due and payable, or both, whereupon (if so declared) the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Borrower hereby expressly waives. (c)[Reserved].
(d)[Reserved].
(e)[Reserved].
(f)[Reserved].
(g)Further, if the Term Loans are accelerated or otherwise become due prior to their maturity date, in each case, as a result of a Default, as a result of the commencement of a proceeding under any Debtor Relief Law, by operation of law or as a result of an acceleration thereunder, the amount of principal of and premium on the Term Loans that becomes due and payable shall equal 100% of the principal amount of the Term Loans plus any Prepayment Premium then due on the date of such acceleration or such other prior due date, as if such acceleration or other occurrence were a voluntary prepayment of the Term Loans accelerated or otherwise becoming due. Without limiting the generality of the foregoing, it is understood and agreed that if the Term Loans are accelerated or otherwise become due prior to their maturity date, in each case, in respect of any Default, as a result of the commencement of a proceeding under any Debtor Relief Law, by operation of law or as a result of an acceleration thereunder, any Prepayment Premium applicable with respect to a voluntary prepayment of the Term Loans will also be due and payable on the date of such acceleration or such other prior due date as
though the Term Loans were voluntarily prepaid as of such date and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Term Lender’s lost profits as a result thereof.
8.5.Amendments.
8.2.1Subject to the provisions of this Article VIII, the Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and the Borrower may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders or the Borrower hereunder or waiving any Unmatured Default or Default hereunder; provided, however, no such supplemental agreement shall, (a) without the consent of the Administrative Agent, modify any rights or obligations of any kind of the Administrative Agent or
(b)without the consent of the Collateral Agent, modify any rights or obligations of any kind of the Collateral Agent, and provided further, that no such supplemental agreement shall,
(a)without the consent of each Lender directly and adversely affected thereby:
(i)increase any Commitment of any Lender without the written consent of such Lender;
(ii)extend the final maturity of any Loan, Commitment or Note or forgive all or any portion of the principal amount thereof (it being understood that a waiver of any condition precedent or the waiver of any default, event of default or mandatory prepayment shall not constitute a reduction in principal), or reduce the stated rate of interest (it being understood a waiver of default interest is not a reduction in the stated rate of interest) or fees or extend the time of payment of interest or fees thereon;
(iii)reduce or extend the scheduled amortization of any Loans or Commitments;
(iv)[reserved];
(v)change the currency in which any Term Loan or Commitment is denominated;
(vi)amend Section 2.10 or 12.2 or amend or modify, directly or indirectly, any provision of any Loan Document that requires payments to the Lenders to be made on a ratable basis or shared on a ratable basis;
(vii)directly or indirectly (A) subordinate any of the Credit Facilities or Obligations in right of payment to the prior payment of any other Indebtedness or obligations of the Loan Parties or (B) subordinate the Liens on any of the Collateral to any other Lien on such Collateral securing any other Indebtedness or obligations of the Loan Parties (including, without limitation, any amendment to the definition of “Permitted Refinancing Indebtedness” that would have substantially the same effect); or
(viii)designate any Subsidiary as “unrestricted” or otherwise exclude any Subsidiary from the requirements applicable to Subsidiaries pursuant to this Agreement.
(b)[Reserved].
(c)without the consent of all Lenders:
(ix)amend this Section 8.2.1, reduce the percentage specified in the definitions of Required Lenders or Supermajority Lenders or include any new or increased Aggregate Outstandings or Aggregate Commitments established pursuant to any amendment hereto in the definitions of Required Lenders or Supermajority Lenders or threshold calculation in clause (e) below for purposes of any consent to be obtained therewith in connection with any transaction contemplated at the time of such amendment; (x)release all or substantially all of the Liens on the Collateral securing the Obligations or the Guarantors from the Guaranty, provided that for the avoidance of doubt releases pursuant to Section 11.9 will not require any amendment or waiver of this Agreement (it being understood that the determination that any assets acquired after the Closing Date shall not constitute or be required to constitute Collateral shall not be deemed a release of Collateral), provided, further, that, notwithstanding anything to the contrary herein or in any other Loan Document, solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities and the Liens on assets of the Borrower may be released with the consent of the Supermajority Lenders, solely in the event that (x) (i) the Supermajority Lenders, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the New Term Loans, and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the Borrower and the German-domiciled Guarantors and (y) such Guarantors and the Borrower are concurrently released from their guarantee obligations under the New Term Loans and the 2025 Notes and the Liens on the assets of such entities securing the New Term Loans and the 2025 Notes are concurrently released, and simultaneously with such release, the Lien granted by the Company on the Capital Stock of the Borrower in favor of the Collateral Agent shall pursuant to the First Lien Pari Passu Intercreditor Agreement automatically rank senior in priority to the Lien on such assets
securing the New Term Loan Facility, the 2025 Notes and (for the avoidance of doubt) the New 2L Notes; provided that, no such release will be effective until the applicable proceeding is actually commenced; or
(xi)permit the Borrower to assign its rights under this Agreement.
(d)subject to Section 8.2.1(c)(ii), without the consent of the Supermajority Lenders, release Liens on Collateral, with a fair market value in excess of $50,000,000 in the aggregate, securing the Obligations.
(e)without the consent of Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 75% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders:
(xii)amend, waive or otherwise modify Section 13.1(b)(iii)(c) to permit purchases of Term Loans hereunder by the Company or any of its Subsidiaries with non-cash consideration; or
(xiii)amend, waive or otherwise modify the second provision to Section 11.9(d).
(f)without the consent of Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 85% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders, amend, waive or otherwise modify Section 6.33, provided that, so long as the Company is not in beach of any requirement to use reasonable best efforts pursuant to Section 6.33(a), any date in Section 6.33(a) may be extended only one time by an aggregate total of up to 15 days as a result of one or more such amendment, waiver or modification with the consent of the Required Lenders.
8.1.1[Reserved]:
8.1.2Notwithstanding anything herein to the contrary, Defaulting Lenders shall not be entitled to vote (whether to consent or to withhold its consent) with respect to any amendment, modification, termination or waiver and, for purposes of determining the Required Lenders, the Commitments and the Aggregate Outstandings of such Defaulting Lender shall be disregarded, in each case except as provided in Section 2.17(a).
8.1.3Notwithstanding anything to the contrary herein or in any other Loan Document, (a) [reserved]; (b) Permitted Amendments may be executed and shall be effective in accordance with the terms of Section 2.22 when signed by the parties required under such Section; (c) [reserved], (d) at all times, any modification to the Make Whole Provisions (or the definition thereof) (or any defined term used in any of the foregoing) shall require the consent of each adversely affected Lender, (e) any amendment to this Section 8.2.4 shall require the consent of each Term Lender adversely affected thereby and (f) any amendment, waiver or other modification of this Agreement or any other Loan Document that by its terms affects the rights or duties under this Agreement of the Lenders of one or more Classes (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Borrower and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time. 8.1.4Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent may, with the consent of the Company only, amend, modify or supplement this Agreement or any of the other Loan Documents as may be reasonably necessary or advisable to cure any error, ambiguity, omission, defect or inconsistency in order to more accurately reflect the intent of the parties, provided that (x) prior written notice of such proposed cure shall be given to the Lenders and (y) the Required Lenders do not object to such cure in writing to the Administrative Agent within five Business Days of such notice. In connection with any amendments required by or appropriate to effectuate Section 6.28, the Administrative Agent and the Company may, without the consent of any other party hereto, make such changes to this Agreement as they deem necessary to reflect the changes required by such Sections. 8.1.5Notwithstanding anything to the contrary herein or in any other Loan Document, (a) no modification or waiver of any provision of this Agreement relating to the Administrative Agent shall be effective without the written consent of the Administrative Agent; (b) no modification or waiver of any provision of this Agreement relating to the Collateral Agent shall be effective without the written consent of the Collateral Agent (acting at the direction of the Required Lenders); (c) [reserved]; and
(d) the Administrative Agent may waive payment of the fee required under Section 13.1 without obtaining the consent of any other party to this Agreement. 8.1.6Notwithstanding anything to the contrary herein or in any other Loan Document, guarantees, collateral documents and related documents executed by Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent or the Collateral Agent (as applicable) and may be, together with any other Loan Document, entered into, amended, supplemented or waived, without the consent of any other person, by the applicable Loan Party or Loan Parties and the Administrative Agent or the Collateral Agent (as applicable), each acting at the direction of the Required Lenders, to (A) effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, (B) as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests
therein comply with applicable requirements of law, or (C) to cure ambiguities, omissions, mistakes or defects or to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents.
8.1.7The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Lender for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Agreement or any Loan Document unless such consideration is offered to all Lender and is paid to all Lenders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment; provided that, this Section 8.2.8 may not be amended, modified or waived without the consent of each Lender directly and adversely affected thereby.
8.6.Preservation of Rights. No delay or omission of the Lenders, the Administrative Agent or the Collateral Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a Loan notwithstanding the existence of a Default or the inability of the Borrower to satisfy the conditions precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 8.2, and then only to the extent in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent, the Collateral Agent and the Lenders until the Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) have been paid in full.
ARTICLE IX [RESERVED] ARTICLE X
GENERAL PROVISIONS
10.14.Survival of Representations. All representations and warranties of the Company and the Borrower contained in this Agreement shall survive delivery of the Loan Documents and the making of the Loans herein contemplated.
10.15.Governmental Regulation. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Borrower in violation of any limitation or prohibition provided by any applicable statute or regulation.
10.16.Headings. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents.
10.17.Entire Agreement; Integration. The Loan Documents embody the entire agreement and understanding among the Borrower, the other Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders and supersede all prior agreements and understandings among the Borrower, the other Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders relating to the subject matter thereof other than any separate letter agreements among the Borrower and the Administrative Agent and/or the Collateral Agent which survive the execution of the Loan Documents
10.18.Several Obligations; Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent and/or the Collateral Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns.
10.19.Expenses; Indemnification.
(at)The Borrower shall reimburse the Agents, the Arranger and their respective Affiliates for any reasonable out-of-pocket costs and expenses documented in reasonable detail (limited in the case of legal fees and expenses, to the reasonable fees, charges and disbursements of one firm of counsel and a single firm of local counsel in each relevant jurisdiction, in each case acting for the foregoing collectively), upon presentation of a reasonably detailed statement of all such costs and expenses, paid or incurred by the Agents, the Arranger and their respective Affiliates in connection with the preparation, negotiation, execution, delivery, syndication, review, amendment, modification, and administration (including, without limitation, preparation of the reports described below) of the Loan Documents (which, in the case of preparation, negotiation, execution, delivery and administration of the Loan Documents shall be limited to a single counsel and a single
local counsel in each relevant jurisdiction). The Borrower also agrees to reimburse the Agents and the Lenders for any reasonable out-of-pocket costs and expenses (limited in the case of legal fees and expenses, to the fees, charges and disbursements of one firm of counsel and a single firm of local counsel in each relevant jurisdiction, in each case acting for the foregoing collectively, plus in the case of an actual or perceived conflict of interest where the person affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected person and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected person) paid or incurred by the Agents or any Lender in connection with the collection and enforcement of the Loan Documents.
(au)The Borrower hereby further agrees to indemnify the Agents, the Arranger, each Lender and the respective Related Parties of each of the foregoing (each such party, an “Indemnitee”) and hold them harmless from and against all losses, claims, damages, liabilities and related expenses, including without limitation, any reasonable and documented (in reasonable detail) legal fees and expenses (but limited in the case of legal fees and expenses, to a single firm of counsel for all such Indemnitees, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Borrower of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected Indemnitee)) of any such Indemnitee to the extent arising out of, in connection with or as a result of the Transactions, including, without limitation, (i) the financings contemplated thereby, or any transactions connected therewith (including the Transactions) or any claim, litigation, investigation or proceeding (regardless of whether any such Indemnitee is a party thereto and regardless of whether such claim, litigation, investigation or proceeding is brought by a third party or by the Company, the Borrower or any of their Subsidiaries) to the extent related to any of the foregoing and (ii) the Release of Hazardous Substances at any real property or facility currently or formerly owned, leased or operated by the Company or any of its Subsidiaries, or any Environmental Liability related to the Company or any of its Subsidiaries; provided that the foregoing indemnity will not, as to any Indemnitee, apply to losses, claims, damages, liabilities and related expenses to the extent they (a) are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Indemnitee or any of its Related Parties, (b) result from a claim brought by the Company, the Borrower or any of their Subsidiaries against such Indemnitee or any of its Related Parties for material breach of such Indemnitee’s or any of its Related Parties’ obligations hereunder if the Company, the Borrower or such Subsidiary has obtained a final and non-appealable judgment in its or its Subsidiary’s favor on such claim as determined by a court of competent jurisdiction or
(av)any dispute solely among Indemnitees or their respective Related Parties other than claims against any agent or arranger in its capacity or in fulfilling its role as agent or arranger or any similar role under the Credit Facilities and other than claims to the extent arising out of any act or omission on the part of the Company or its Affiliates. This paragraph shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim. The obligations of the Company under this Section 10.6 shall survive the termination of this Agreement. 10.20.Severability of Provisions. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
10.21.Nonliability of Agents and Lenders. The relationship between the Borrower and the Lenders shall be solely that of borrower and lender. Neither the Administrative Agent, the Collateral Agent nor any Lender shall have any fiduciary responsibilities to the Borrower. Neither the Administrative Agent, the Collateral Agent nor any Lender undertakes any responsibility to the Borrower to review or inform the Borrower of any matter in connection with any phase of the Borrower’s business or operations. The Borrower agrees that neither the Administrative Agent, the Collateral Agent nor any Lender shall have liability to the Borrower (whether sounding in tort, contract or otherwise) for losses suffered by the Borrower in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, except to the extent it is determined by a court of competent jurisdiction in a final and non-appealable order that such losses resulted from the gross negligence or willful misconduct of, or material breach of any of the Loan Documents by, the party from which recovery is sought. Neither the Administrative Agent, the Collateral Agent nor any Lender shall have any liability with respect to, and the Borrower hereby waives, releases and agrees not to sue for, any special, punitive, indirect or consequential damages suffered by the Borrower in connection with, arising out of, or in any way related to the Loan Documents, the Transactions or the other transactions contemplated thereby.
10.22.Confidentiality.
(aw)Each of the Administrative Agent, the Collateral Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’
directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and be instructed and agree to keep such Information confidential), (ii) to the extent requested by any regulatory authority or by applicable laws or regulations, (iii) to the extent required by any subpoena or similar legal process, provided, however, to the extent permitted by applicable law and if practical to do so under the circumstances, that the Person relying on this clause (iii) shall provide the Company with prompt notice of any such required disclosure so that the Company may seek a protective order or other appropriate remedy, and in the event that such protective order or other remedy is not obtained, such Person will furnish only that portion of the Information which is legally required, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and their obligations, (vii) as permitted by Section 13.2 hereof, (viii) with the consent of the Company or (ix) to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section or any agreement contemplated by this Section or (2) becomes available to the Administrative Agent, the Collateral Agent or any Lender on a nonconfidential basis from a source other than the Company (and not in breach of this Section or any agreement contemplated by this Section). For the purposes of this Section, “Information” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or their business, other than any such information that is available to the Administrative Agent, the Collateral Agent or any Lender on a non-confidential basis prior to disclosure by the Company or any Subsidiary and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. (ax)Notwithstanding the above, nothing in any Loan Document shall prevent disclosure of any confidential information or other matter to the extent that preventing that disclosure would otherwise cause any transaction contemplated by the Loan Documents or any transaction carried out in connection with any transaction contemplated by the Loan Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
(ay)EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.9(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON- PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. (az)NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EACH OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS ACKNOWLEDGES THAT SOME OR ALL OF THE INFORMATION AS DEFINED IN SECTION 10.9(a) IS OR MAY BE PRICE SENSITIVE INFORMATION AND THAT THE USE OF SUCH INFORMATION MAY BE REGULATED OR PROHIBITED BY APPLICABLE LEGISLATION INCLUDING SECURITIES LAWS RELATING TO INSIDER TRADING (UNDER THE EU MARKET ABUSE REGULATION, GERMAN SECURITIES TRADING ACT (Wertpapierhandelsgesetz - WpHG) OR OTHERWISE) AND EACH OF THE ADMINISTRATIVE AGENT AND THE LENDERS UNDERTAKES NOT TO USE ANY INFORMATION FOR ANY UNLAWFUL PURPOSE. (ba)ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY, THE ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE COMPANY, THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
10.23.Nonreliance. Each Lender hereby represents that it is not relying on or looking to any Margin Stock for the repayment of the Loans provided for herein.
10.24.USA PATRIOT Act. Each Lender that is subject to the requirements of the Patriot Act hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it may be required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Patriot Act.
10.25.Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 10.12 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
10.26.Transparency Provisions. For the purposes of the transparency provisions set forth in the CICR Resolution of 4 March 2003 and in the “Disposizioni sulla trasparenza delle operazioni e dei servizi bancari e finanziari” issued by the Bank of Italy (as amended from time to time), each of the parties hereby acknowledges and confirms that:
(bb)they have appointed and have been assisted by their respective legal counsels in connection with the negotiation, preparation and execution of this Agreement; and
(bc)this Agreement, and all of its terms and conditions, including the Recitals and the schedules hereto, have been specifically negotiated in all their aspects (“oggetto di trattativa individuale”) between the parties to this Agreement.
ARTICLE XI THE AGENTS
11.19.Appointment. Each of the Lenders hereby irrevocably appoints (a) the Administrative Agent as its administrative agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto, and (b) the Collateral Agent as its collateral agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
(bd)Each of the Lenders authorises each of the Agents to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to such Agent under or in connection with this Agreement and the other Loan Documents together with any other incidental rights, powers, authorities and discretions expressly including appearing before Spanish public notaries to grant or execute any Spanish Public Document or private deed related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, documents of formalisation, acknowledgement, confirmation, modification or release, acceptance of any security interest and acceptance of acknowledgement of debts by Guarantors).
(be)At the request of each of the Agents, a Lender that cannot authorise or empower, or has not authorised or empowered, either Agent to act on its behalf, irrevocably undertakes to each of the Agents and the other Lenders, to appear before a Spanish public notary and execute the relevant Spanish Public Document or other private deed together with such Agent to enable them to exercise any right, power, authority or discretion vested in it as Administrative Agent or Collateral Agent, as applicable, pursuant to this Agreement and to execute any document or instrument including any Spanish Public Document.
(bf)Each of the Lenders hereby releases each of the Agents from the restrictions (to the extent such restrictions would otherwise apply) on self-dealing and multi-representation pursuant to Section 181 of the German Civil Code (BGB) and similar restrictions (if any) applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Lender. Each of the Lenders, which, for whatever reason, cannot grant a release from the restrictions pursuant to Section 181 BGB shall inform each of the Agents accordingly and, upon reasonable request of the Administrative Agent or the Collateral Agent (acting at the direction of the Required Lenders), either act in accordance with the terms of the Loan Documents as required pursuant to the Loan Documents or grant a special power of attorney to a party acting on its behalf, in a manner that is not prohibited pursuant to Section 181 BGB, including (for the avoidance of doubt), for the purpose of creating, administration of or the release of security.
(bg)In relation to the Loan Documents governed by Italian law, each of the Lenders (except, with respect to clause (ii) below, for any Lender which has confirmed to the Collateral Agent that it cannot appoint the Collateral Agent as its agent (mandatario con potere di rappresentanza) in all cases of conflict of interest and self-dealing, in accordance with article 1394 and 1395 of the Italian Civil Code, provided that such Lender undertakes to take any action that the Collateral Agent will request to protect the Collateral Agent from any consequence of the above, including the ratification of any document or action executed or taken by the Collateral Agent) on behalf of itself and any of its Affiliates
that are Secured Parties hereby irrevocably (i) appoints the Collateral Agent to be its agent (mandatario con potere di rappresentanza) for the purpose of executing on behalf of itself and any of its Affiliates that are Secured Parties any Loan Document which is expressed to be governed by Italian law; (ii) consents that the Collateral Agent may act as its agent (mandatario con potere di rappresentanza) in all cases of conflict of interest and self-dealing, in accordance with article 1394 and execute each Loan Documents governed by Italian law expressed to be executed by the Collateral Agent on on behalf of itself and any of its Affiliates that are Secured Parties including to execute any document with itself (contratto con sé stesso) in accordance with article 1395 of the Italian Civil Code; (iii) grants the Collateral Agents the power to negotiate and approve the terms and conditions of such Loan Documents, execute any other agreement or instrument, give or receive any notice or declaration, identify and specify to third parties the names of the Secured Parties at any given date, and take any other action in relation to the creation, perfection, maintenance, enforcement and release of the security created thereunder in the name and on behalf of the Secured Parties; (iv) confirms that in the event that any security created under the Italian Collateral Documents remains registered in the name of a Lender and/or a Secured Party after it has ceased to be a Lender and/or a Secured Party then the Collateral Agent shall remain empowered to execute a release of such security in its name and on its behalf; (v) undertakes to ratify and approve any such action taken in the name and on behalf of the Secured Parties by either of the Agents acting in its appointed capacity; and (vi) consents to the possibility for the Collateral Agent to delegate and sub-delegate any of its powers under this clause including by appointing third parties agents and/or representatives.
(bh)Each of the Secured Parties (for itself and on behalf of its Affiliates) designates and appoints the Collateral Agent as its representative (vertegenwoordiger/représentant) within the meaning of (a) Article 5 of the Belgian Act of 15 December 2004 on financial collateral arrangements and several tax dispositions in relation to security collateral arrangements and loans of financial instruments, as amended from time to time, to create, register, manage and/or enforce on its behalf any Security created by a Security Document governed by Belgian law constituting financial collateral; and (b) Article 3 of Book III, Title XVII of the Belgian Civil Code.
11.20.[Reserved].
11.21.Limitation of Duties and Immunities. The Administrative Agent and the Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent and the Collateral Agent shall not be subject to any fiduciary or other implied duties or be held to be a trustee or fiduciary for any Secured Party, regardless of whether a Default or Unmatured Default has occurred and is continuing, (b) the Administrative Agent and the Collateral Agent (as applicable) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent and the Collateral Agent are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as required hereunder); provided that the Administrative Agent and Collateral Agent shall not be required to take any action that, in their opinion or the opinion of its counsel, may expose the Administrative Agent or Collateral Agent (as applicable) to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law;,
(c) except as expressly set forth herein, the Administrative Agent and the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Administrative Agent, the Collateral Agent or any of their Affiliates in any capacity, (d) the Collateral Agent reserves the right to conduct a Phase I environmental assessment prior to foreclosing on any real estate Collateral or mortgage Collateral, (e) the Collateral Agent reserves the right to forebear from foreclosing in its own name if to do so may expose it to undue risk, (f) in the event that, following a foreclosure in respect of any Collateral, the Collateral Agent acquires title to any portion of such Collateral or takes any managerial action of any kind in regard thereto in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the Collateral Agent to be considered an “owner or operator” under the provisions of CERCLA or otherwise cause the Collateral Agent to incur liability under CERCLA or any other Federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, to either resign as Collateral Agent or arrange for the transfer of the title or control of the asset to a court appointed receiver, (g) neither the Administrative Agent nor the Collateral Agent (as applicable) shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent, Collateral Agent or any of its Affiliates in any capacity; and (h) the duties or obligations of the Administrative Agent and Collateral Agent shall be solely mechanical and administrative in nature. The Administrative Agent and the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.2.1) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Collateral Agent shall each be deemed not to have knowledge of any Default or Unmatured Default unless and until written notice thereof is given to the Administrative Agent by the Company, the Borrower or a Lender, and the Administrative Agent and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other
agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
11.22.Reliance on Third Parties. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made in writing and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
11.23.Sub-Agents. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Collateral Agent and any such sub-agent, and shall apply to their respective activities as Administrative Agent or Collateral Agent, as applicable.
11.24.Successor Agent. Any Agent may resign upon 30 days’ notice by notifying the Lenders and the Company. Upon any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor from among the Lenders that is a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or Collateral Agent, as applicable, which shall (unless an Event of Default shall have occurred and be continuing) be subject to approval by the Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent. Whether or not a successor has been appointed such resignation shall become effective in accordance with the notice given by the Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Borrower to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.6 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent or Collateral Agent, as applicable. Notwithstanding the above, no successor Agent shall be incorporated, domiciled, established or acting though an office in a Non-Cooperative Jurisdiction without the prior consent of the Borrowers.
11.25.Independent Credit Decisions. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities.
11.26.Arrangers. No Arranger shall any obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
11.27.Permitted Release of Collateral and Guarantors.
(bi)Automatic Release. If any Collateral is the subject of a Disposition (other than to another Loan Party) which is permitted under Section 6.14, the Liens in such Collateral granted under the Loan Documents shall automatically terminate with respect to such Collateral, and such Collateral will be disposed of free and clear of all such Liens. (bj)Written Release. The Collateral Agent is authorized to release of record, and shall release of record, any Liens encumbering any Collateral that is the subject of a Disposition described in clause (a) above upon an authorized officer of the Company certifying in writing to the Collateral Agent that the proposed Disposition of Collateral is not to a Loan Party and is permitted under Section 6.14. To the extent the Collateral Agent is required to execute any release documents in accordance with the immediately preceding sentence, the Collateral Agent shall do so promptly upon request of the Company without the consent or further agreement of any Secured Party. If the Disposition of Collateral is not
permitted under or pursuant to the Loan Documents, the Liens encumbering the Collateral may only be released in accordance with the other provisions of this Section 11.9 or the provisions of Section 8.2. (bk)Other Authorized Release and Subordination. The Collateral Agent is irrevocably authorized by the Secured Parties, without any consent or further agreement of any Secured Party to: (i) subordinate or release the Liens granted to the Collateral Agent to secure the Obligations with respect to any Property which is permitted to be subject to a Lien of the type described in clauses (c), (d) and (f) of the definition of Permitted Encumbrances and clause (vii) of Section 6.16, (ii) release the Collateral Agent’s Liens upon the termination in full of the Commitments and the repayment in full of all Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) and (iii) release the Collateral Agent’s Liens upon any Collateral that becomes an Excluded Asset; provided, that if as of the date of the requested release under clause (i): (A) the Borrower is subject to a proceeding of the type described in Section 7.6 or 7.7, or (B) the Collateral Agent is applying the proceeds of Collateral in accordance with Section 2.10(b), then the Collateral Agent shall not release its Liens until the termination in full of the Commitments and the repayment in full of all Obligations. (bl)Authorized Release of Guarantors. If the Administrative Agent shall have received a certificate of an Authorized Officer of the Company requesting the release of a Guarantor (other than the Company), certifying that the Administrative Agent is authorized to release such Guarantor because (x) the Capital Stock issued by such Guarantor have been disposed of to a Person other than a Loan Party in a transaction permitted by Section 6.14 (or with the consent of the Required Lenders pursuant to Section 8.2)) or (y) such Guarantor is no longer required to provide a guaranty pursuant to Section 2.18 (including, but not limited to, the release upon or after the Closing Date of any Guarantor that is an Excluded Subsidiary), then the Collateral Agent is irrevocably authorized by the Secured Parties, without any consent or further agreement of any Secured Party to release the Liens granted to the Collateral Agent to secure the Obligations in the assets of such Guarantor and release such Guarantor from all obligations under the Loan Documents; provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of any 2025 Notes, New 2L Notes, New Term Loans, Existing Term Loans and/or the ABL Facility or any Permitted Refinancing Indebtedness of any of the foregoing; provided, further, that notwithstanding anything to the contrary herein, no Guarantor shall be released from its obligations under the Loan Documents solely by reason of such Guarantor ceasing to be a Wholly Owned Subsidiary unless either (x) it is no longer a direct or indirect Subsidiary of the Company or (y) such Guarantor ceases to be a Wholly Owned Subsidiary as a result of a sale, issuance or transfer of Equity Interests to a Person that is not an Affiliate of the Company and such sale or transfer is made for a bona fide business purpose of the Borrower and its Subsidiaries and not for the primary purpose of evading the requirements of Sections 2.18, 6.9 and 6.12. To the extent the Collateral Agent is required to execute any release documents in accordance with the immediately preceding sentence, the Collateral Agent shall do so promptly upon request of the Company without the consent or further agreement of any Secured Party. (bm)Intercreditor Arrangements.
(i)Each Agent is authorized to enter into or amend any intercreditor or subordination agreement with respect to Indebtedness (including the Intercreditor Agreements) that is (x) required or permitted to be subordinated hereunder and/or (y) secured by Liens (other than Liens on Collateral (other than ABL Priority Collateral) contemplated to rank senior or on an equal priority basis with the Liens securing the Obligations) and which Indebtedness contemplates or would necessitate an intercreditor, subordination or collateral trust agreement (any such agreement, an “Additional Agreement”), and the Secured Parties acknowledge that the Additional Agreements are binding upon them. Each Secured Party (a) agrees that it will be bound by, and will not take any action contrary to, the provisions of any Additional Agreement and (b) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into the Additional Agreements and to subject the Liens on the Collateral securing the Obligations to the provisions thereof.
(ii)The Administrative Agent is expressly instructed by each Lender to enter into the ABL Intercreditor Agreement in its capacity as Super Priority Term Administrative Agent (as defined in the ABL Intercreditor Agreement) and on behalf of each Lender, and thereby to irrevocably appoint the European Collateral Agent (as defined in the ABL Intercreditor Agreement), on behalf of itself and each Lender, to serve as collateral agent in respect of the Foreign Collateral (as defined in the ABL Intercreditor Agreement) (other than Collateral located in or otherwise governed by the laws of France or any province or territory of Canada) pursuant to the terms of the ABL Intercreditor Agreement.
11.28.Perfection by Possession and Control. The Collateral Agent hereby appoints each of the other Lenders to serve as bailee to perfect the Collateral Agent’s Liens in any Collateral (other than deposit, securities or commodity accounts) in the possession of any such other Lender and each Lender possessing any such Collateral agrees to so act as bailee for the Collateral Agent in accordance with the terms and provisions hereof.
11.29.Lender Affiliates Rights. By accepting the benefits of the Loan Documents, any Person (other than a party hereto) (a “non-Party Secured Party”) that is owed any Obligation is bound by the terms of the Loan Documents. But notwithstanding the foregoing: (a) neither any Agent, any Lender nor any Loan Party shall be obligated to deliver any notice or communication required to be delivered to any Lender under any Loan Documents to any non-Party Secured Party; and (b) no non-Party Secured Party that is owed any Obligation shall be included in any voting determinations under the Loan Documents or entitled to consent
to, reject, or participate in any manner in any amendment, waiver or other modification of any Loan Document. No Agent shall have any liabilities, obligations or responsibilities of any kind whatsoever to any non-Party Secured Party who is owed any Obligation. The Agents shall deal solely and directly with the parties to the Loan Documents in connection with all matters relating to the Loan Documents. The Obligation owed to any non-Party Secured Party that is an Affiliate of a Lender (or a Person that was a Lender at the time of designation of any such obligation as an Obligation) shall be considered the Obligation of its related Lender for all purposes under the Loan Documents and such Lender shall be solely responsible to the other parties hereto for all the obligations of such Affiliate under any Loan Document.
11.30.Actions in Concert. Notwithstanding anything contained in any of the Loan Documents, the Borrower, each Agent and each Lender hereby agree that (A) no Secured Party shall have any right individually to realize upon any of the Collateral under any Security Documents or to enforce the guarantee set forth in any Guaranty, it being understood and agreed that all powers, rights and remedies under any Guaranty and the Security Documents may be exercised solely by the Administrative Agent or the Collateral Agent (as applicable) (acting at the direction of the Required Lenders) for the benefit of the Secured Parties in accordance with the terms thereof and (B) in the event of a foreclosure by the Collateral Agent (acting at the direction of the Required Lenders) on any of the Collateral pursuant to a public or private sale, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Secured Party in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold in any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
11.31.Additional Exculpatory Provisions.
(bn)Neither the Administrative Agent nor the Collateral Agent:
(iii)shall be liable for any action taken or not taken by it, in each case, in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent and Collateral Agent shall be deemed not to have knowledge of any Unmatured Default or Default unless and until notice describing such Unmatured Default or Default is given to the Administrative Agent and Collateral Agent in writing by the Borrower or a Lender;
(iv)shall be responsible for or have any duty to ascertain or inquire into: (1) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (3) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Unmatured Default or Default; (4) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document (5) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to ensure that any Liens granted to the Collateral Agent pursuant to this Agreement or any other Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, or (6) the satisfaction of any condition set forth in Article IV or elsewhere herein or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Collateral Agent. Neither the Administrative Agent nor the Collateral Agent shall have any responsibility, for or liability with respect to, monitoring compliance of any other party to the Loan Documents or any other document related hereto or thereto. Neither the Administrative Agent nor the Collateral Agent shall have any duty to monitor the value or rating of any Collateral on an ongoing basis. Other than in respect of legal or arbitration proceedings relating to the perfection, preservation or protection of rights under the Collateral Documents or enforcement of the Collateral or Collateral Documents, the Administrative Agent and Collateral Agent are not authorized to act on behalf of a Lender (without first obtaining that Lender’s prior written consent) in any legal or arbitration proceedings relating to this Agreement or any Loan Document;
(v)shall be accountable for the use or application by any Person of disbursements properly made by the Administrative Agent or the Collateral Agent in conformity with the provisions of the Loan Documents or of moneys received from the Loan Parties; or
(vi)shall be required to take any action, perform any duties or responsibilities or exercise any rights, powers, authorities or discretions that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose it to liability (financial or otherwise) or that is contrary to any Loan Document or applicable law (for the avoidance of doubt, the Administrative Agent and Collateral Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Loan Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions).
(bo)The Collateral Agent and the Administrative Agent shall be entitled to request written instructions, or clarification of any instruction, from the Required Lenders (or, if the relevant Loan Document stipulates the matter is a
decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Collateral Agent and the Administrative Agent may refrain from acting unless and until it receives those written instructions or that clarification. In the absence of written instructions, the Collateral Agent and the Administrative Agent, as applicable, may act (or refrain from acting) as it considers to be in the best interests of the Lenders. If in the administration of the Loan Documents the Administrative Agent and the Collateral Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Agent (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon instructions from the Required Lenders.
(bp)In no event shall the Administrative Agent or the Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(bq)None of the Administrative Agent or the Collateral Agent shall be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other security documents pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other security document pertaining to this matter.
(br)Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
11.32.Quebec Hypothecary Representative. Without limiting the powers of the Collateral Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec to secure the prompt payment and performance of any and all Obligations by any Loan Party, each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to act as the hypothecary representative of the present and future Secured Parties as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec and applicable law. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and
(b) benefit from and be subject to all provisions hereof with respect to the Administrative Agent and Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Secured Parties and the Loan Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Assumption, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XI also constitute the substitution of the Attorney.
11.33.Appointment of the Collateral Agent for French Law Security Documents.
(bs)Each Secured Party (other than the Collateral Agent) hereby irrevocably and unconditionally appoints GLAS AMERICAS LLC, a New York limited liability company, having its registered office at 3 Second Street, Suite 206, Jersey City, NJ 07311 and whose registered number is 4851551, as Collateral Agent (agent des sûretés), pursuant to articles 2488-6 to 2488-12 of the French Civil Code, in respect of the Security Documents and the Collateral governed by French law in order to take, register, manage and enforce the Collateral created or purported to be created under the Security Documents governed by French law. As a result:
(vii)the Collateral Agent shall be the title owner (titulaire) of the guarantees and Collateral created or purported to be created under the Loan Documents and the rights and assets acquired by the Collateral Agent in carrying out its functions shall form a dedicated estate, distinct from the Collateral Agent’s own estate;
(viii)in respect of the Security Documents and the Collateral governed by French law, the Collateral Agent shall act in its own name for the benefit of the Secured Parties; and
(ix)the Collateral Agent shall identify itself as such when acting in such capacity.
(bt)The Collateral Agent shall act in accordance with the powers given to it by law and by the Loan Documents. If at any time, the Collateral Agent is required to take any action in respect of the Security Documents and the Collateral governed by French law (i) which is outside the scope of the powers granted to it by law or (ii) at a time when its appointment under Section 11.15(a) is terminated as a result of a pledge enforcement, then the Collateral Agent shall act as agent (mandataire) of each relevant Secured Party (as mandant).
(bu)The Collateral Agent hereby accepts the appointments under Sections 11.15(a) and 11.15(b).
(bv)The Collateral Agent shall solely act in its capacity as Collateral Agent or for itself (as Secured
Party).
(bw)Any change of Collateral Agent appointed pursuant to this Section 11.15 (Appointment of the
Collateral Agent for French Law Security Documents) shall be made in accordance with Section 11.6 (Successor Agent) (remplacement conventionnel) or in accordance with article 2488-11 of the French Civil Code (remplacement judiciaire).
(bx)Each Secured Party:
(x)confirms its approval of the Security Documents and Collateral and irrevocably authorizes, empowers and directs the Collateral Agent to execute the Security Documents and to take any steps, and gather any information, in connection with the preparation of the Security Documents and the perfection, preservation and/or enforcement of the Collateral;
(xi)irrevocably authorises, empowers and directs the Collateral Agent to perform the duties and exercise the rights, powers and discretions that are specifically entrusted to it under the Loan Documents, together with any other rights, powers and discretions which are incidental thereto, and to give a good discharge for any moneys payable under the Security Documents; and
(xii)acknowledges and confirms that the Collateral Agent is entitled to take any step to protect the interests of the Secured Parties; however, notwithstanding the provisions of article 2488-9 of the French Civil Code, the Collateral Agent shall not be bound to make the filing of any proof of claim for the benefit of any Secured Party, unless otherwise agreed between the Collateral Agent and that Secured Party.
(by)Notwithstanding any contrary provision in this agreement, or any other Loan Document:
(xiii)the Collateral Agent shall not hold the benefit of the Security Documents governed by French law on trust but as agent des sûretés;
(xiv)no Obligor incorporated in France shall undertake to pay any Parallel Debt pursuant to Section 17.1 (Parallel Debt; Parallel Debt owed to the Collateral Agent) and the Security Documents governed by French law shall not secure any Parallel Debt; and
(xv)no appointment of additional collateral agent or delegation of powers by the Collateral Agent shall be made in respect of the Security Documents governed by French law for those rights and duties which benefit to or are imposed on the Collateral Agent by operation of articles 2488-6 to 2488-12 of the French Civil Code.
11.34.UK Security Trustee.
(bz)Notwithstanding any other provision of this Agreement, each Secured Party (including each Lender, on behalf of itself and any of its Affiliates that are Secured Parties) irrevocably appoints the Collateral Agent to act as its trustee under and in connection with each Security Document governed by the laws of England and Wales on the terms and conditions set out in any such Security Document to hold the assets subject to the security thereby created as trustee for the Secured Parties on the trusts and other terms contained in any such Security Document and the ABL Intercreditor Agreement. Each of the Secured Parties authorizes the Collateral Agent to exercise the rights, remedies, power and discretions, specifically given to Collateral Agent under or in respect of the Security Documents governed by the laws of England and Wales, together with any rights, remedies, power and discretions, incidental thereto. In addition, when acting in the capacity of trustee for the Secured Parties, the Collateral Agent shall have all the rights, remedies, protections and benefits of and in favor of the Collateral Agent contained in this Article XI. Any reference in this Agreement to Liens stated to be granted by an English Loan Party in favor of the Collateral Agent shall be construed so as to include a reference to Liens granted in favor of the Collateral Agent in its capacity as security trustee of the Secured Parties on the trusts and other terms contained in any Security Document governed by the laws of England and Wales and the ABL Intercreditor Agreement.
(ca)Nothing in this Article XI shall require the Collateral Agent to act as a trustee at common law or to hold any property on trust in any jurisdiction outside the United States or England and Wales that may not operate under principles of trust or where such trust would not be recognized or its effects would not be enforceable.
11.35.Certain Acknowledgement of Lenders.
(cb)Each Lender hereby agrees that (x) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent at the greater of the NYFRB Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to such Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this Section 11.17 shall be conclusive, absent manifest error.
(cc)Each Lender hereby further agrees that if it receives a Payment from any Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent at the greater of the NYFRB Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(cd)The Company and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the applicable Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Company or any other Loan Party except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Company.
(ce)Each party’s obligations under this Section 11.17 shall survive the resignation or replacement of any Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
11.36.Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent and each of its Affiliates, and each of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents and sub- agents, to the extent that such Agent shall not have been reimbursed by any Loan Party (but without limiting such Loan Party’s reimbursement obligations hereunder), for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including fees and disbursements of financial and legal advisors) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent or any of its Affiliates, or any of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents or sub-agents, in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Loan Documents; provided no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided in no event shall this sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. Without limiting the foregoing, each Lender agrees to reimburse the Agents promptly upon demand for its ratable share of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the Agents in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Loan Documents, to the extent that the Agents are not reimbursed for such expenses by the Company or another Loan Party. Amounts payable pursuant to this Section 11.18 shall be payable on demand.
ARTICLE XII
SETOFF; ADJUSTMENTS AMONG LENDERS
12.3.Setoff. In addition to, and without limitation of, any rights of the Lenders under applicable law, if any Default occurs and is continuing, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender to or for the credit or account of the Borrower may be offset and applied toward the payment of the Obligations owing by the Borrower; provided, that if any Defaulting Lender shall exercise such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Borrower and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
12.4.Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to it upon its Obligations owing from the Borrower (other than payments received pursuant to Section 3.2, 3.3, 3.4, 10.6 or as otherwise expressly set forth in this Agreement) in a greater proportion than that received by any other Lender on its Obligations owing from the Borrower, such Lender agrees, promptly upon demand, to purchase a portion of the Advances to the Borrower held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of Advances to the Borrower. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives any protection for its Obligations or such amounts which may be subject to setoff from or with respect to the Borrower, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such protection ratably in proportion to their Obligations owing by the Borrower. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.3.Successors and Assigns.
(cf)The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (cg)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees, other than an Ineligible Person or a Disqualified Lender, all or a portion of its rights and obligations under this Agreement (including all or a portion of any of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of (A) the Company, provided that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if a Default under 7.2, 7.5 or 7.7 has occurred and is continuing, any other assignee, and provided, further, that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof and (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund. (xvi)Assignments shall be subject to the following additional conditions:
(A)except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of such Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $1,000,000 unless each of the Company and the Administrative Agent otherwise consent, provided that no such consent of the Company shall be required if a Default under Sections 7.2, 7.5 or 7.7 has occurred and is continuing or if the assignment is to another Lender or an Affiliate of a Lender;
(B)each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to any Class of Commitments or Loans;
(C)the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together (unless waived by the Administrative Agent) with a processing and recordation fee of $3,500; provided that (i) no such fee shall be payable in the event of an assignment by a Lender to an Affiliate or Approved Fund of such Lender and (ii) only one such fee shall be payable in the event of related assignments to or from a Lender and one or more of such Lender’s Affiliates or Approved Funds;
(D)the assignee, if it has not already done so, shall deliver to the Administrative Agent any tax forms required by Section 3.4(f) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company and its related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(E)the assignee shall not be incorporated, domiciled or acting through a lending office in a Non- Cooperative Jurisdiction without the prior consent of the Borrowers.
For the purposes of this Section 13.1, the term “Approved Fund” has the following meaning: “Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered, managed, underwritten, advised or subadvised by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, manages or subadvises a Lender.
(xvii)Notwithstanding anything to the contrary herein, a Term Lender of any Class may assign all or any portion of its Term Loans hereunder to the Company or any of its Subsidiaries, but only if (a) any such proposed purchase of Term Loans shall be made pursuant to customary Dutch auction procedures open to all Term Lenders of such Class on a pro rata basis to terms to be agreed by the Administrative Agent (such agreement not to be unreasonably withheld, conditioned or delayed), (b) no Default or Unmatured Default has occurred and is continuing at the time of such assignment, (c) the consideration for any such proposed purchase is cash and (d) such Term Loans are automatically and permanently cancelled immediately upon the effectiveness of such assignment and are thereafter no longer be outstanding for any purpose hereunder.
(xviii)Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, subject to paragraph (d) of this Section, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.2, 3.3, 3.4 (subject to the requirements and limitations of Section 3.4) and 10.6 and the obligations of Section 10.9 with respect to Information (as defined in such Section) received by it while a Lender). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 13.1 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. (xix)The Administrative Agent shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of and stated interest on the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(xx)Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by Section 3.4(f) (unless the assignee shall already have provided such forms), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee is a Defaulting Lender, the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(xxi)Notwithstanding anything to the contrary herein, to the extent a transfer of rights and obligations by a Lender hereunder could be construed as a novation within the meaning of articles 1329 et seq. of the French Civil Code, each party thereto agrees that upon a transfer or assignment under paragraph (b) of this Section 13.1 any Collateral governed by French law or created under the French Collateral Documents shall be preserved (réservée) and maintained in full force and effect for the benefit of the Collateral Agent, the assignee and the remaining Secured Parties pursuant to articles 1334 and seq. of the French Civil Code.
(ch)Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more banks or other entities, other than an Ineligible Person or, to the extent a list thereof has been posted by the Administrative Agent to all the Lenders, Disqualified Lenders (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (i) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (ii) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the second proviso to Section 8.2.1 that affects such Participant. Subject to paragraph (d) of this Section, the Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.2, 3.3 and 3.4 (subject to the requirements and limitations therein, including the requirements under Section 3.4(f) (it being understood that the documentation required under Section 3.4(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section, except as provided under Section 13.1(d). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.1 as though it were a Lender, provided such Participant agrees to be subject to Section 12.2 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts of and stated interest on each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f. 103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. (ci)No Participant shall be entitled to receive any greater payment under Section 3.2 or 3.4 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. (cj)For the purposes of and pursuant to Article 1263 of the Italian Civil Code, it is hereby expressly agreed that, in the event of any transfer of rights or obligations or sub-participation made by a Lender under this Section
13.1 (Successors and Assigns), the guarantee granted by each Italian obligor shall be preserved for the benefit of any new Lender and each other Lender in accordance with the terms of the Loan Documents.
(ck)For the purposes of Article 1407, paragraph 1, of the Italian Civil Code, each of the parties provides its consent to the transfer (cessione), in whole or in part, by any existing lender of its contractual position (i.e., its rights and obligations) under this Agreement and the other Loan Documents in favour of any new Lender and agrees that upon transfer, in accordance with a transfer certificate and this Section 13.1 (Successors and Assigns), the guarantees and security interests created under the Loan Documents shall be preserved, without novation (novazione), for the benefit of any new Lender.
(cl)Notwithstanding anything to the contrary herein, to the extent a transfer of rights and obligations by a Lender hereunder could be construed as a novation within the meaning of articles 1329 et seq. of the French Civil Code, each party thereto agrees that upon a transfer or assignment under paragraph (b) of this Section 13.1 any Collateral governed by French law or created under the French Collateral Documents shall be preserved (réservée) and maintained in full force and effect for the benefit of the Collateral Agent, the assignee and the remaining Secured Parties pursuant to articles 1334 and seq. of the French Civil Code.
(cm)At the request of the Administrative Agent and the cost of the assignee, the assignee and the existing Lender shall promptly elevate the duly completed assignment agreement to the status of Spanish Public Document.
Any Loan Party incorporated under the laws of Spain and the other parties irrevocably agree that, in the event of any transfer and/or assignment pursuant to this clause the security interest created by, together with all rights and remedies arising under, the Spanish Collateral Agreements entered into by each Guarantor incorporated under the laws of Spain party thereto shall be maintained in full force and effect. In particular, the Guarantors incorporated under the laws of Spain undertake to take all steps necessary to preserve the security interest created in favour of the Collateral Agent for the benefit of the Lenders by the Spanish Collateral Agreements, including, but not limited to, appearing before a Spanish notary public to notarise the relevant amendments to such Spanish Collateral Agreements.
Each Guarantor incorporated under the laws of Spain, accepts all transfers or assignments made by the Lenders under this Agreement without requiring any formalities, including, without limitation, the notification to the Guarantor of the relevant transfer or assignment, or the execution of any transfer or assignment document as a Spanish Public Document in Spain or the notarisation of the relevant document in any other country.
13.4.Dissemination of Information. The Borrower authorizes each Lender to disclose, solely in compliance with applicable laws, to any Participant or potential assignee or any other Person acquiring an interest in the Loan Documents by operation of law (each a “Transferee”) and any prospective Transferee any and all information in such Lender’s possession concerning the Loan Documents and the creditworthiness of the Company and its Subsidiaries (including the Disqualified Lender list), provided that each Transferee and prospective Transferee agrees to be bound by Section 10.9.
ARTICLE XIV
NOTICES
14.3.Notices. Except as otherwise permitted by Section 2.11 with respect to Borrowing Notices, all notices, requests and other communications to any party hereunder shall be in writing (including electronic transmission, facsimile transmission or similar writing) and shall be given to such party:
(cn)in the case of the Borrower to:
Diebold Nixdorf Holding Germany, GmbH Heinz-Nixdorf-Ring 1
33106 Paderborn Germany
Telephone: +49 5251 / 693 30
E-mail: james.barna@dieboldnixdorf.com with a copy to:
c/o Diebold Nixdorf, Incorporated 5995 Mayfair Road
North Canton, Ohio 44720-1507 Attention: Vice President & Treasurer Telecopy No.: 330-490-6823
Telephone: 330-490-6713
E-mail: james.barna@dieboldnixdorf.com with a copy to:
Sullivan & Cromwell 125 Broad Street
New York, New York 10004 Attention: Ari Blaut Telephone: (212) 558-1656
E-mail: blauta@sullcrom.com
(co)in the case of the Administrative Agent to: GLAS USA LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07301
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
(cp)in the case of the Collateral Agent to: GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07301
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
(cq)in the case of any Lender, at its address or e-mail address set forth in its Administrative Questionnaire or as otherwise established pursuant to an Assignment and Assumption (and the related Administrative Questionnaire); or
(cr)in the case of any party, at such other address or e-mail address as such party may hereafter specify for the purpose by notice to the Administrative Agent, the Collateral Agent and the Borrower in accordance with the provisions of this Section 14.1. Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if given by electronic transmission, when transmitted and received (with an appropriate confirmation of receipt of delivery and during normal business hours), all pursuant to procedures approved by the Administrative Agent, provided that the approval of such procedures may be modified or revoked by the Administrative Agent from time to time with reasonable prior notice to the Company and may be limited to particular notices or other communications, or (iii) if given by any other means, when delivered at the address specified in this Section; provided that notices to the Administrative Agent or the Collateral Agent under Article II shall not be effective until received. Any communication or document made or delivered to the Borrower in accordance with this Section 14.1 will be deemed to have been made or delivered to the Company and each Subsidiary or any other member of the Group party to a Loan Document. Each German Guarantor, for this purpose, appoints the Borrower as its receipt agent (Empfangsboten). 14.4.Change of Address. The Borrower, the Administrative Agent, the Collateral Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto.
ARTICLE XV COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and the Collateral Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail message shall be effective as delivery of a manually executed counterpart of this Agreement.
ARTICLE XVI
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
16.7.Choice of Law. This Agreement shall be construed in accordance with and governed by the law of the State of New York.
16.8.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
16.9.Submission to Jurisdiction; Waivers.
(cs)Each party hereto hereby irrevocably and unconditionally:
(xxii)submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court; provided, that nothing contained herein or in any other Loan Document will prevent any Lender, the Collateral Agent or the Administrative Agent from bringing any action to enforce any award or judgment or exercise any right under the Security Documents or against any Collateral or any other property of any Loan Party in any other forum in which jurisdiction can be established;
(xxiii)waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (i) of this Section; (xxiv)agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to its address specified in Section 14.1, or (in the case of the Borrower) at such other address of which the Administrative Agent shall have been notified pursuant thereto; (xxv)agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction in which the defendant is domiciled; and
(xxvi)waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection any special, exemplary, punitive or consequential damages.
(ct)Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement against any other party or the property thereof in the courts of any jurisdiction where such party is domiciled. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(cu)The Borrower and each Subsidiary hereby irrevocably appoints the Company as its agent for service of process in any proceeding referred to in Section 16.3(a)(i) and agrees that service of process in any such proceeding may be made by mailing or delivering a copy thereof to it care of the Company at its address for notices set forth in Section 14.1. 16.10.Acknowledgments. The Borrower hereby acknowledges and agrees that (a) no fiduciary, advisory or agency relationship between the Loan Parties and the Administrative Agent, Collateral Agent, Arranger or Lenders is intended to be or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of whether the Administrative Agent, Collateral Agent, Arranger or Lenders have advised or are advising the Loan Parties on other matters, and the relationship between the Administrative Agent, Collateral Agent, Arranger and Lenders, on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is solely that of creditor and debtor, (b) the Administrative Agent, Collateral Agent, Arranger and Lenders, on the one hand, and the Loan Parties, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their Affiliates on the part of the Administrative Agent, Collateral Agent, Arranger and Lenders, (c) the Loan Parties are capable of evaluating and understanding, and the Loan Parties understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement and the other Loan Documents, (d) the Loan Parties have been advised that the Administrative Agent, Collateral Agent, Arranger and Lenders are engaged in a broad range of transactions that may involve interests that differ from the Loan Parties’ interests and that the Administrative Agent, Collateral Agent, Arranger and Lenders have no obligation to disclose such interests and transactions to the Loan Parties, (e) the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan Documents, (f) each Administrative Agent, Collateral Agent, Arranger and Lender has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their Affiliates or any other Person, (g) none of the Administrative Agent, Arranger or Lenders has any obligation to the Loan Parties or their Affiliates with respect to the transactions contemplated by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other express writing executed and delivered by such
Administrative Agent, Arranger or Lender and the Loan Parties or any such Affiliate and (h) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Administrative Agent, Collateral Agent, Arranger or Lenders or among the Loan Parties and the Administrative Agent, Collateral Agent, Arranger or Lenders.
16.11.[Reserved].
16.12.Judgment.
(cv)If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, under applicable law that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency in the city in which it normally conducts its foreign exchange operation for the first currency on the Business Day preceding the day on which final judgment is given.
(cw)The obligation of the Loan Parties in respect of any sum due from them to any Lender hereunder shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by such Lender of any sum adjudged to be so due in the Judgment Currency such Lender may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency; if the amount of Agreement Currency so purchased is less than the sum originally due to such Lender in the Agreement Currency, the Borrower agrees notwithstanding any such judgment to indemnify such Lender against such loss, and if the amount of the Agreement Currency so purchased exceeds the sum originally due to any Lender, such Lender agrees to remit to the Borrower or other applicable Loan Party such excess.
ARTICLE XVII CERTAIN ADDITIONAL MATTERS
17.9.Parallel Debt; Parallel Debt owed to the Collateral Agent. This Section 17.1 is included in this Agreement solely for the purpose of ensuring the validity and effect of certain security rights governed by the laws of the Netherlands, Poland and Germany granted or to be granted pursuant to the applicable Collateral Documents and, for the avoidance of doubt, shall not limit the rights and remedies provided to the Administrative Agent or the Collateral Agent by the other provisions hereof and the provisions of the other Loan Documents.
(a)Each of the Loan Parties hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties amounts equal to any amounts owing from time to time by that Loan Party to any Secured Party under any Loan Document as and when those amounts are due for payment under the relevant Loan Document (each such payment undertaking of a Loan Party in relation to any individual Secured Party, a “Parallel Debt Undertaking”, and all Parallel Debt Undertakings of each Loan Party taken together, its “Parallel Debt”).
(b)Each of the Loan Parties and the Collateral Agent acknowledge that the obligations of each Loan Party under any Parallel Debt Undertaking are several and are separate and independent from, and shall not in any way limit or affect, the obligations of that Loan Party to that relevant Secured Party under any Loan Document that corresponds to the relevant Parallel Debt Undertaking (its “Corresponding Debt”) nor shall the amounts for which each Loan Party is liable under any Parallel Debt Undertaking be limited or affected in any way by its Corresponding Debt provided that:
(xv)the Collateral Agent shall not demand payment with regard to the Parallel Debt Undertaking of a Loan Party to the extent that the relevant Lender’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
(xvi)a Secured Party shall not demand payment with regard to the Corresponding Debt of a Loan Party to the extent that such Loan Party’s Parallel Debt Undertaking has been irrevocably paid or (in the case of guarantee obligations) discharged.
(xvii)each Parallel Debt Undertaking shall cover, in an anticipatory manner as to its scope, any future changes in the relevant Corresponding Debt, in particular any such changes resulting from any future increase of any loan or note facility, any future extension of the agreed maturity thereof or any future change of the interest rate charged thereunder;
(xviii)each Parallel Debt Undertaking shall be due and payable at any time from the date of this Agreement in an amount which equals the amount and currency or currencies of the relevant Corresponding Debt that is due and payable at the same time as the relevant Corresponding Debt; and
(xix)each Parallel Debt Undertaking shall remain effective notwithstanding any transfer or assumption of its Corresponding Debt in whole or in part to or by any third party, irrespective of whether any such transfer or assumption is effected by way of assignment or assignment and transfer by way of assumption of contract or otherwise.
(c)The Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral under the Collateral Documents granted under the Loan Documents to the Collateral Agent to secure the Parallel Debt Undertakings is granted to the Collateral Agent in its capacity as creditor of each Parallel Debt Undertaking and shall not be held on trust.
(d)All monies received or recovered by the Collateral Agent pursuant to this Section 17.1, and all amounts received or recovered by the Collateral Agent from or by the enforcement of any collateral under the Collateral Documents granted to secure any Parallel Debt Undertaking, shall be applied in accordance with this Agreement.
(e)Without limiting or affecting the Collateral Agent’s rights against the Loan Parties (whether under this Section 17.1 or under any other provision of the Loan Documents), each Lender acknowledges that:
(xx)nothing in this Section 17.1 shall impose any obligation on the Collateral Agent to advance any sum to any Lender or otherwise under any Loan Document, except in its capacity as lender; and
(xxi)for the purpose of any vote taken under any Loan Document, the Collateral Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity as a lender.
(xxii)For purposes of any Dutch Collateral Document, any resignation by Collateral Agent is not effective with respect to its rights under the Parallel Debt until all rights and obligations under the Parallel Debt have been assigned to and assumed by the successor agent appointed in accordance with this Agreement.
(f)The Collateral Agent will reasonably cooperate in transferring its rights and obligations under the Parallel Debt to a successor agent in accordance with this Agreement and will reasonably cooperate in transferring all rights and obligations under any Collateral Document to such successor agent. All parties to this Agreement hereby, in advance, irrevocably grant their cooperation (medewerking) to such transfers of rights and obligations by the Common Security Agent to a successor agent in accordance this Agreement.
(g)The provisions of this Section 17.1 may not apply for any Security Documents governed by French
law.
17.10.Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
(xxiii)a reduction in full or in part or cancellation of any such liability;
(xxiv)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(xxv)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
17.11.Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guarantee or otherwise, for any agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
If a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a
U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any
interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
17.12.Original Issue Discount Legend. THE TERM LOANS HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT AND YIELD TO MATURITY OF THE TERM LOANS MAY BE OBTAINED BY WRITING TO THE COMPANY AT ITS ADDRESS AS SPECIFIED IN THIS AGREEMENT.
17.13.Spanish Law Provisions.
17.5.1Spanish Public Document
The Borrower and any Spanish Loan Parties undertake to raise (i) this Agreement; (ii) the Spanish Collateral Agreements; and, (iii) at the request of the Administrative Agent, any Loan Document entered into by a Spanish Loan Party, to the status of a Spanish Public Document before a Spanish notary public within ninety (90) Business Days from the Closing Date.
Each Spanish Public Document will:
(a)have the effects established under articles 517 et seq. of the Spanish Civil Procedure Law; and
(b)may, at the decision of the Administrative Agent, include a translation into Spanish of this Clause
17.5 (Spanish law provisions).
Each party hereby expressly authorises the Administrative Agent (and any other Finance Party, as appropriate) to request and obtain from the Spanish notary public before whom any Loan Document has been formalised, any further copy of any Loan Document notarised at the cost of the requesting party.
17.5.2Spanish Civil Procedure
For the purposes of Article 572.2 of the Spanish Civil Procedure Law, all Parties expressly agree that the exact amount due at any time by the Borrower to the Lenders under the Loan Documents will be the amount specified in a certificate issued by the Administrative Agent (and/or any Lender) and will be based on the accounts maintained by the Administrative Agent in connection with this Agreement. For such purposes:
(c)the Administrative Agent, acting in such capacity, will open and will keep in its books a special internal account in the name of the Borrower, into which the Administrative Agent will debit the amounts for principal, interest (including default interest), fees, costs, expenses and other sums owed by the Borrower under this Agreement, and shall credit into such account all sums received by the Administrative Agent in payment of the amounts owed by the Borrower under this Agreement, so that the balance of the said account shall at all times reflect the amounts owed by the Borrower under this Agreement:
(d)in addition to the account referred to in the preceding paragraph, each of the Lenders will open and will keep on its books a special internal account to that described in the above-mentioned paragraph, in which the Lender concerned will reflect the amounts owed thereto by the Borrower under this Agreement, as well as the amounts paid therein by the Borrower, in order that the balance of such account at all times reflects the sums owed by the Borrower to the relevant Lender under this Agreement.
It is expressly agreed that, for the purposes of any judicial enforcement procedure against the Borrower or any Spanish Loan Party, any amounts owed to the Administrative Agent or to any of the Lenders will be deemed to be an amount due, liquid and payable (importe líquido y exigible).
For the purposes of article 572.2 of the Spanish Civil Procedure Law, the parties agree that the amount claimable in the event of enforcement will be the amount calculated by the Administrative Agent (or by the Lenders concerned), as set out in the preceding paragraphs. In this regard, the parties expressly acknowledge that the issue by the Administrative Agent of a certificate relating to the accounts referred to above shall preclude the subsequent issue by any of the Lenders of any certificate relating to its accounts, and that likewise the issue by any of the Lenders of any certificate relating to its account shall preclude the issue by
the Administrative Agent of a certificate relating to the account of such Lender, except in the latter case where the necessary entries have been made in the relevant account in order to deduct the amounts certified individually by a Lender.
The parties hereby agree that it in order to initiate executive enforcement proceedings in Spain against any of the Borrower and/or Guarantors under article 517 et seq of the Spanish Civil Procedure Law it shall be sufficient (i) to establish the amount due and payable in accordance with the preceding paragraphs by the Administrative Agent, or any of the Lenders; (ii) to attach to this document both the certificate referred to in article 517.5 of the Spanish Civil Procedure Law and the settlement referred to in article 572.2 of the same law establishing the amounts claimed, together with a certificate issued by a Notary declaring that such sum claim conforms to the balance appearing on the aforementioned accounts; and (iii) that the settlement was prepared in the manner agreed by the parties in this Agreement. The said certification shall be final and conclusive for the purposes of this Agreement, except in the case of manifest error.
17.1.1Raising to Spanish Public Document
Any amendment to a Loan Document that is a Spanish Public Document shall be raised, if requested by the Administrative Agent, to the status of Spanish Public Document.
17.1.2Spanish notarial costs and expenses
The Borrower shall promptly on demand pay the Administrative Agent the amount of all costs and expenses, including but not limited to, notarial costs, translation costs, registration costs and tax related costs arising from the notarisation before a Spanish public notary of any Loan Document reasonably incurred by any of them.
17.1.3Spanish law personal guarantee provisions
Any personal guarantee granted under this Agreement or in accordance with it by a Guarantor incorporated under the laws of Spain will not extend to include any obligations or liabilities if to do so would cause a breach of the financial assistance prohibitions contained in articles 143 and 150 of the Spanish Companies Act.
Each Guarantor incorporated under the laws of Spain acknowledges that any personal guarantee granted under this Agreement or in accordance with it must be construed as a first demand guarantee (garantía a primer requerimiento) and not as a performance bond (fianza) and, therefore, the benefits of preference (exclusión), order (orden) and division (division) shall not be applicable.
17.14.Preservation of Belgian Collateral Documents. If any of the Secured Parties’ rights and/or obligations under any of the Loan Documents are transferred or deemed to be transferred by way of novation, the rights and prerogatives under the Belgian Collateral Documents shall be maintained in favour of the transferee and the remaining Secured Parties, in accordance with Article 1278 of the Belgian Civil Code.
17.15.Waiver of priority. The persons who become a Lender after the date of this Agreement expressly waive any priority of ranking they may have in connection with the Loan Documents pursuant to the Belgian Act of 3 August 2012 on various measures to facilitate the mobilisation of receivables in the financial sector (Wet van 3 augustus 2012 betreffende diverse maatregelen ter vergemakkelijking van de mobilisering van schuldvorderingen in de financiële sector/ Loi du 3 août 2012 relative à des mesures diverses pour faciliter la mobilisation de créances dans le secteur financier).
17.16.Special Appointment of Collateral Agent (German Collateral).
(a)For the purposes of any security provided under the German Security Documents (where “German Collateral” means any security interest created under the Security Documents governed by German law) in addition to the provision set out above, the specific provisions set out in paragraphs (b) to (f) of this Section 17.8 shall be applicable. In the case of any inconsistency, the provisions set out in paragraphs (b) to (f) of this Section 17.8 shall prevail. The provisions set out in paragraph (b) to (f) of this Section 17.8 shall not constitute a trust but a fiduciary relationship (Treuhand) within the meaning of German law.
(b)With respect to any German Collateral constituted by non–accessory (nicht akzessorische) security interests, the Collateral Agent shall hold, administer and, as the case may be, enforce or release that German Collateral in its own name, but as trustee (Treuhänder) for the account of, the Secured Parties, and shall hold, administer and, as the case may be, enforce or release that German Collateral in its own name on the basis of its own rights under Section 17.8.
(c)With respect to any German Collateral constituted by accessory (akzessorische) security interests, the Collateral Agent shall administer and, as the case may be, enforce or release that German Collateral in the name of and for and on behalf of, the Secured Parties and shall hold, administer and, as the case may be, enforce or release that German Collateral in its own name on the basis of its own rights under Section 17.8.
(d)Each Secured Party (other than the Collateral Agent) hereby instructs and authorizes the Collateral Agent (with the right of sub-delegation) to act as its agent (Stellvertreter) and in particular (without limitation) to enter into and amend any documents evidencing German Collateral and to make and accept all declarations and take all actions it
considers necessary or useful in connection with any German Collateral on behalf of that Secured Party. The Collateral Agent shall further be entitled to enforce or release any German Collateral, to perform any rights and obligations under any documents evidencing German Collateral and to execute new and different documents evidencing or relating to the German Collateral.
(e)At the request of the Collateral Agent, each Secured Party shall provide the Collateral Agent with a separate written power of attorney (Spezialvollmacht) for the purposes of executing any agreements and documents or otherwise acting on their behalf. Each Secured Party hereby ratifies and approves all acts previously done by the Collateral Agent on such secured party’s behalf.
(f)Each Secured Party which becomes a party to this Agreement ratifies and approves all acts and declarations previously done by the Collateral Agent on such Secured Party’s behalf (including, for the avoidance of doubt the declarations made by the Collateral Agent as representative without power of attorney (Vertreter ohne Vertretungsmacht) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of each Secured Party as future pledgee or otherwise).
(g)Each Secured Party hereby releases the Collateral Agent from the restrictions imposed by Section 181 German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other law, in each case to the extent legally possible to that Secured Party. A Secured Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Collateral Agent accordingly.
(h)The Collateral Agent accepts its appointment as agent and administrator of the German Collateral on the terms and subject to the conditions set out in this Agreement and the Secured Parties, the Collateral Agent and all other parties to this Agreement agree that, in relation to any German Collateral, no Secured Party (other than the Collateral Agent in that capacity) shall exercise any independent power to enforce any German Collateral or take any other action in relation to the enforcement of the German Collateral, or make or receive any declarations in relation thereto.
[Signature Pages Follow]
In WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
DIEBOLD NIXDORF, INCORPORATEED
By /s/ Jeffrey Rutherford Name: Jeffrey Rutherford
Title: Executive Vice President and Chief Financial Officer
DIEBOLD NIXDORF HOLDING GERMANY GMBH
By /s/ Olaf Heyden Name: Olaf Heyden
Title: Managing Director
| | |
[Signature Page to Superpriority Credit Agreement] |
[Lenders' signature pages on file with the Company.]
Accepted and Agreed:
GLAS USA LLC,
as Administrative Agent
By /s/ Jeffrey Schoenfeld Name: Jeffrey Schoenfeld
Title: Vice President
GLAS AMERICAS LLC,
As Collateral Agent
By /s/ Jeffrey Schoenfeld Name: Jeffrey Schoenfeld
Title: Vice President
| | |
[Signature Page to Superpriority Credit Agreement] |
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement (as defined below), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.Assignor:
2.Assignee:
[and is an Affiliate/Approved Fund of [identify Lender]1]
3.Borrower: Diebold Nixdorf Holding Germany GmbH, a German limited liability
company (the “Borrower”)
4.Administrative Agent: GLAS USA LLC, as the administrative agent under the Credit Agreement
5.Credit Agreement: The Credit Agreement dated as of December [_], 2022, among Diebold
Nixdorf, Incorporated (the “Company”), the Borrower, the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as
Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, restated or otherwise modified from time to time, the “Credit Agreement”).
6.Assigned Interest:
1 Select as applicable.
| | | | | | | | | | | |
Facility Assigned2 | Aggregate Amount of Term Loans for all Lenders | Amount of Term Loans Assigned | Percentage Assigned of Term Loans3 |
| $ | $ | % |
| $ | $ | % |
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver (or has delivered) to the Administrative Agent (a) a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrowers and their Related Parties or their respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws and (b) all tax forms required by Section 3.4 of the Credit Agreement. The Assignee agrees to hold such information confidential to the extent required by Sections 10.9 and 13.2 of the Credit Agreement.
[The Assignee has paid (or shall concurrently with the execution of this Assignment and Assumption pay) the processing and recordation fee of $3,500 to the Administrative Agent].
For the purposes of Article 1278 of the Belgian Civil Code, it is confirmed that the rights and prerogatives under the Belgian Collateral Documents shall be maintained in favour of the Assignee and the remaining Secured Parties.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: Title:
2 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Term Loans”)
3 Set forth, to at least 9 decimals, as a percentage of the Term Loans of all Lenders thereunder.
[Consented to and]4 Accepted:
GLAS USA LLC, as
Administrative Agent
By Title:
[Consented to:]5
DIEBOLD NIXDORF, INCORPORATED
By Title:
4 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
5 To be added only if the consent of the Company is required by the terms of the Credit Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
1.Representations and Warranties.
1.1Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and
(b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of the Borrowers, any of the Company’s Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by any Borrower, any of the Company’s Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,
(ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Collateral Agent or any other Lender, and (v) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Collateral Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT B
[RESERVED]
EXHIBIT C NOTE
, 20
Diebold Nixdorf Holding Germany GmbH (“Borrower”), unconditionally promises to pay to
and its registered assigns (“Lender”) on or before the Term Loan Maturity Date (as defined in the Credit Agreement hereinafter referred to) for the account of its applicable Lending Installation the principal sum of ( ) in immediately available funds at the payment office of the Administrative Agent designated by the Administrative Agent to the Borrower, together with interest on the unpaid principal amount thereof at the rates and on the dates set forth in the Credit Agreement [and, without duplication, principal payments in the amounts and on the dates set forth in the Credit Agreement]
The Lender shall, and is hereby authorized to, record in accordance with its usual practice, the date and amount of each Term Loan, the date and amount of each principal payment and the date to which payment of this Note has been extended, provided, however, that failure to do so shall not affect the Borrower’s obligation to pay amounts due hereunder.
The Borrower expressly waives any presentments, demand, protest or notice in connection with this Note now, or hereafter, required by applicable law.
This Note is one of the Notes issued pursuant to the provisions of the Credit Agreement dated as of December [_], 2022 among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), to which reference is hereby made for a statement of the terms and conditions under which this Note may be prepaid or its maturity date extended or accelerated. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
Diebold Nixdorf Holding Germany GmbH
By:
Title:
EXHIBIT D
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold
Nixdorf, Incorporated, an Ohio corporation (the “Company”), Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record and beneficial owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-
U.S. person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By: Name:
Title:
Date: , 20[ ]
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a credit agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By: Name:
Title:
Date: , 20[ ]
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: Name:
Title:
Date: , 20[ ]
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a credit agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and
(v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner's/member's beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: Name:
Title:
Date: , 20[ ]
EXHIBIT E SOLVENCY CERTIFICATE
Date: , 20
To the Administrative Agent, the Collateral Agent and each of the Lenders party to the Credit Agreement referred to below:
I, the undersigned, the [Chief Financial Officer][Treasurer] of Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), in that capacity only and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof), that:
1.This Solvency Certificate (this “Certificate”) is being executed and delivered pursuant to Section 4.1(o) of the Credit Agreement, dated as of December [_], 2022, among the Company, Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.
2.For purposes of this certificate, the terms below shall have the following
definitions:
(g)“Fair Value”
The amount at which the assets (both tangible and intangible), in their entirety, of the Company and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(h)“Present Fair Salable Value”
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Company and its Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(i)“Stated Liabilities”
The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Company and its Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof), determined in accordance with GAAP consistently applied.
(j)“Identified Contingent Liabilities”
The maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof) (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Company.
(k)“Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they
mature”
The Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
(l)“Do Not Have Unreasonably Small Capital”
The Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
3.For purposes of this Certificate, I, or officers of the Company under my direction and supervision, have performed the following procedures as of and for the periods set forth below.
(m)I have knowledge of and have reviewed to my satisfaction the Credit Agreement.
(n)As [Chief Financial Officer][Treasurer] of the Company, I am familiar with the financial condition of the Company and its Subsidiaries.
4.Based on and subject to the foregoing, I hereby certify on behalf of the Company that after giving effect to the consummation of the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof), it is my opinion that (i) each of the Fair Value and the Present Fair Salable Value of the assets of the Company and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Company and its Subsidiaries taken as a whole Do Not Have Unreasonably Small Capital; and (iii) the Company and its Subsidiaries taken as a whole Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature.
2
IN WITNESS WHEREOF, the Company has caused this certificate to be executed on its behalf by its [Chief Financial Officer][Treasurer] as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title: [Chief Financial Officer][Treasurer]
EXHIBIT F COMPLIANCE CERTIFICATE
To: The Administrative Agent, the Collateral Agent and Lenders party to the Credit Agreement Described Below
This Compliance Certificate (this “Certificate”) is furnished pursuant to that certain Credit Agreement dated as of December [_], 2022 among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), Diebold Nixdorf Holding Germany GmbH, a German limited liability company (the “Borrower”), the lenders from time to time party thereto (the “Lenders”), GLAS USA LLC, as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this Certificate have the meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1.I am the duly elected , 1of the Company;
2.I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Company and its Subsidiaries during the accounting period covered by the attached financial statements; and
3.The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or Unmatured Default during or at the end of the accounting period covered by the attached financial statements (the “Covered Period”) or as of the date of this Certificate, except as set forth below.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Company has taken, is taking, or proposes to take with respect to each such condition or event:
_______________________________________________________________
____________________________________________________________
____________________________________________________________
____________________________________________________________
The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this day of , .
1 Must be a Designated Financial Officer.
Annex I
AGREED SECURITY PRINCIPLES
1.Agreed Security Principles
(o)Subject to paragraph (b) below, the guarantees and security required to be provided under the Loan Documents (i) by any Loan Party incorporated in a Foreign Guarantor Jurisdiction (such term as defined below) (a “Foreign Loan Party”) or (ii) over the Equity Interests of a Foreign Loan Party owned by any Loan Party, will in each case, be given in accordance with the security principles set out in this Annex I (these “Agreed Security Principles”). This Annex I identifies the Agreed Security Principles and determines the extent and terms of the guarantees and security proposed to be provided (x) by the Foreign Loan Parties and (y) in respect of the Equity Interests of Foreign Loan Parties owned by any Loan Party in relation to the Loans (or any refinancing thereof) and the other Obligations.
(p)To the extent that an interpretation of these Agreed Security Principles or a determination is required to be made hereunder in connection with the delivery of guarantees and security or the terms of the guarantees and security, such determination will be made by the Company and the Required Lenders and, with respect to any provisions relating to protections or obligations of the Administrative Agent or the Collateral Agent, the Administrative Agent and the Collateral Agent, respectively. For the avoidance of doubt, neither the Collateral Agent nor the Administrative Agent shall have any obligation to ensure that the security and guarantees provided are consistent with these Agreed Security Principles.
2.Guarantees
Subject to the guarantee limitations set out in the Loan Documents, and with respect to the Foreign Loan Parties, customary limitations in the relevant jurisdiction reasonably agreed by the Company and the Required Lenders, each guarantee by a Foreign Loan Party will be an upstream, cross-stream and downstream guarantee for the Obligations in accordance with, and subject to, the terms of these Agreed Security Principles in each relevant jurisdiction (references to "security" to be read for this purpose as including guarantees).
3.Secured Liabilities
Security documents will secure, subject to local law restrictions, all liabilities of Loan Parties under the Loan Documents in accordance with, and subject to, the terms of the Agreed Security Principles in each relevant jurisdiction.
4.Overriding Principle
(q)The guarantees and security to be provided in respect of the Agreement by Foreign Subsidiaries in accordance with these Agreed Security Principles are only to be given by Foreign Subsidiaries which are incorporated in Germany, Belgium, France, England & Wales, Sweden, Spain, Poland, Italy and the Netherlands (each a “Foreign Guarantor Jurisdiction”) and no security or guarantees shall be required to be given by Foreign Subsidiaries not incorporated in Foreign Guarantor Jurisdictions.
(r)The parties agree that the overriding intention, subject to paragraph (a) above, is for security only to be granted by, and shall be limited, to a Foreign Loan Party which is incorporated in a Foreign Guarantor Jurisdiction in respect only over (and in any case only to the extent commercially and legally feasible in such Foreign Guarantor Jurisdiction):
(A)its Required Accounts (without control over use prior to a Default);
(B)its tangible moveable property;
(C)intra-group receivables owed to such Foreign Loan Party;
(D)intellectual property owned by such Foreign Loan Party;
(E)insurance policies;
(F)account and trade receivables owed to such Foreign Loan Party;
(G)the shares and/or quotas owned in such Foreign Loan Party by its direct holding company provided that such direct holding company is also a Loan Party and shares owned by such Foreign Loan Party in its direct subsidiaries;
(H)fee owned real property having a fair market value in excess of
$10,000,000;
(I)in the case of an English Loan Party, its goodwill and uncalled capital;
(J)all of its assets by way of a qualifying floating charge (or equivalent) from an English Loan Party and any other Foreign Loan Party incorporated in a Foreign Guarantor Jurisdiction with a practical equivalent of an English law floating charge;
(K)tort claims, investments and contractual claims against third parties; and
(L)in the case of a security provider incorporated in Sweden, corporate mortgage (Sw. företagshypotek) over corporate mortgage registrations (Sw. företagsinteckingar),
(the “Overriding Principle”) and that no other security shall be required to be given by any other Foreign Loan Party or any other person or in relation to any other asset.
(s)Without prejudice to paragraph (b) above, no guarantees shall be required to be granted by and no security shall be required to be granted by or in (i) any Subsidiary that is an Excluded Subsidiary or (ii) any asset that is an Excluded Asset.
(t)In addition, for the avoidance of doubt, no Foreign Loan Party incorporated in France shall be under any obligation pursuant to these Agreed Security Principles to grant security interest on any asset if it is reasonably determined by such Foreign Loan Party incorporated in France that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered). If it is reasonably determined by the Company and the Required Lenders that the applicable time and cost of obtaining such opinion would be disproportionate to the
benefit accruing to the Lenders of obtaining such security interest, the Foreign Loan Party incorporated in France shall not launch the works council’s consultation process and shall not be under any obligation to grant the security interest on such relevant asset.
5.Governing Law and Jurisdiction of Security
(u)Except as described below, all security will be governed by the law of the jurisdiction of incorporation of the applicable grantor of the security.
(v)Share security over any subsidiary will be governed by the law of the place of incorporation of that subsidiary or of the applicable grantor, provided that such place of incorporation is a Foreign Guarantor Jurisdiction, the United States or Canada.
(w)Any security in respect of inventory and if reasonably required by the Collateral Agent (at the direction of the Required Lenders), other Required Accounts shall be governed by the law of the jurisdiction in which it is located, provided that the location is a Foreign Guarantor Jurisdiction, the United States or Canada.
(x)Security in relation to any receivables will be governed by the laws of the governing law of such receivables or the place of incorporation of the applicable grantor, provided that such law is the law at a Foreign Guarantor Jurisdiction.
(y)No action in relation to security (including any perfection step, further assurance step, filing or registration) will be required in jurisdictions where the applicable grantor of the security is not incorporated other than in the United States, Canada or another Foreign Guarantor Jurisdiction.
6.Terms of security documents
The following principles will be reflected in the terms of any security taken in connection with the Loans (or any refinancing thereof):
(z)security will be ranking in accordance with the lien priorities in any applicable Intercreditor Agreement;
(aa)security will, to the extent possible under local law, not be enforceable until the occurrence of a Default (an “Applicable Event”) which is continuing (and, with respect to security governed by the laws of the Netherlands, constitutes a default in the performance of the secured obligations);
(ab)with respect to security interests granted by an Italian Loan Party (or governed by Italian law) and a Spanish Loan Party, Applicable Event will be a payment default or the acceleration of the relevant secured obligations;
(ac)unless as otherwise required to perfect the security or required by law (e.g. with respect to the power of attorney for the purposes of the notarization of the equity pledge security of any German Loan Party or the Spanish law irrevocable power of attorney to be granted in relation to the Spanish law Security), the beneficiaries of the security or any agent will only be able to exercise a power of attorney granted by a Loan Party and to exercise any withdrawal rights in respect of a secured asset following (1) the occurrence of an Applicable Event which is continuing or (2) if the relevant Loan Party has failed to comply with its obligations under the relevant security documents within five Business Days of request;
(ad)the security documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Loan Documents; accordingly:
(i)they should not contain identical or additional representations, undertakings or indemnities (including in respect of insurance, information, maintenance or protection of assets or the payment of fees, costs and expenses) unless required for the creation or perfection of security, to maintain effective security or customary in the relevant jurisdiction;
(ii)notwithstanding anything to the contrary in any security document, the terms of a security document shall not operate or be construed so as to prohibit or restrict any transaction, matter or other step permitted by the Loan Documents or where the applicable level of creditor consent required by the relevant Loan Document (“Required Creditor Consent”) has been obtained and the Collateral Agent shall (pursuant to its authority under Section 11.9 of the Agreement), upon the reasonable request of a Foreign Loan Party that grants Collateral (a “Chargor”) promptly following receipt of an officer’s certificate to the extent requested by the Collateral Agent, enter into such documentation and/or take such other action as is required by a Chargor (acting reasonably) in order to facilitate any such transaction, matter or other step, including by way of executing any confirmation, consent to dealing, release or other similar or equivalent document, provided that any costs and expenses incurred by the Collateral Agent entering into such documentation and/or taking such other action at the request of such Chargor pursuant to this paragraph shall be for the account of such Chargor, in accordance with the costs and expenses provisions set out in the Agreement and such provision shall be included in each security document; and
(iii)the security documents should not operate so as to require additional consents or authorisations from the Lenders unless these are required for the creation or perfection of security or to maintain effective security;
(ae)security will, where possible, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges or notices to be delivered in respect of future acquired assets in order for effective security to be created over that class of asset, such supplemental pledges or notices will (unless otherwise customary in the relevant jurisdiction) be provided periodically at intervals no more frequent than quarterly (unless required more frequently under local law or local market practice, including if required due to the shorter maturity of the relevant future acquired asset) (or with such higher frequency specified by the Collateral Agent after the occurrence of an Applicable Event);
(af)the security documents will provide that, upon the occurrence of the date on which all Obligations (or Secured Obligations (as defined in the ABL Intercreditor Agreement, in the case of any Common Lien, as defined in the ABL Intercreditor Agreement)) (each case other than in respect of contingent indemnification and expense reimbursement claims not then due) have been paid in full, the Collateral Agent shall, at the request of and the cost and expense of the Company, and solely with respect to the Obligations (or Secured Obligations), release, reassign or retransfer the respective asset or class of assets to the relevant Loan Party, and shall take all actions and execute any and all documents as may be necessary or convenient to evidence the cancellation, release and termination of all guarantees and security pursuant to Section 11.9 of the Agreement without having to make or being deemed to make any representation or warranty, whether express or implied, with respect to the relevant payor’s financial soundness and/or any asset or class of assets so released and subject to the rights of any
person having prior rights over any such assets; any such release, reassignment, retransfer, cancellation or termination is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in bankruptcy, insolvency, liquidation, administration or otherwise, without limitation, then such security or guarantee will continue or be reinstated as if the release, reassignment, retransfer, cancellation or termination had not occurred;
(ag)unless required by local law or customary in the relevant jurisdiction, the circumstances in which the Collateral shall be released should not be dealt with in individual security documents but, if so required, shall, except to the extent required by local law, be the same as those set out in the Loan Documents;
(ah)other than in each case of any German law share pledge agreement, each security document must contain a clause which records that if there is a conflict between the security document, the Agreement or any applicable Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Agreement and the applicable Intercreditor Agreement will take priority over the provisions of the security document unless and to the extent it would prejudice the legality, creation, priority, perfection, validity or enforceability of such security document or the security created under or pursuant to the security document, save with respect to the release of the security interests where applicable law and market practice require certain additional steps in order to address local law claw back issues (e.g. comfort documents);
(ai)each of the security documents will, to the extent possible under local law, include a provision that provides that (i) all rights, protections, limitations on liability, exculpations and indemnifications provided or otherwise afforded to the Administrative Agent and the Collateral Agent under the Agreement, including, without limitation Article XI and Section 10.6 of the Agreement shall apply in all respects to the Collateral Agent as chargee, security trustee or pledgee under the applicable security document, (ii) the applicable security document shall be subject to the provisions of Section 10.6 of the Agreement, which provisions shall apply to the applicable security document mutatis mutandis as though fully set forth therein, with each reference to the Borrower or Company, as applicable, being read to include the applicable chargor or pledgor, (iii) the Collateral Agent may act and exercise rights under the applicable security document, but shall not be obligated to act or exercise rights under the applicable security documents (and shall not incur liability for failure to act or exercise rights) unless directed in writing by the Required Lenders; provided that the Collateral Agent shall not be required to take any action or exercise any right that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose the Collateral Agent to liability (financial or otherwise) or that is contrary to any Loan Document or applicable laws (for the avoidance of doubt, the Collateral Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Loan Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions);
(aj)subject to (or to the extent permitted by) the applicable law and in accordance with market practice, the terms of the security documents shall secure the Obligations as such Obligations (and/or the Agreement or other Loan Documents) (or, where relevant, parallel debt derived therefrom) may be amended, amended and restated, restated, supplemented, replaced, renewed, restructured, extended, refunded, refinanced or otherwise modified from time to time (including without limitation, where such transactions result in any increases or decreases of the principal amount of the Obligations, any extensions of maturity, any changes in interest rates or other economic
terms, or any changes in the Secured Parties, Lenders or Lenders’ agents) so as to minimize the need for any additional security documents, confirmations, reaffirmations, supplements, amendments or other actions with respect to such security documents in connection with the foregoing; and
(ak)each of the security documents will provide that all proceeds will be applied in accordance with the Intercreditor Agreements and Section 2.10 of the Agreement.
7.Shares and/or quotas
(al)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, the legal title of the shares and/or quotas subject to any security will remain with the relevant grantor of the security (unless transfer of title on granting such security is customary in the applicable jurisdiction and does not result in any risk of liability to the Collateral Agent (as advised by the advisors to the Collateral Agent or Lenders)).
(am)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, any grantor of share security will be permitted to retain and to exercise all voting rights and powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition, provided that (to the extent permitted by the applicable law) such grantor must not exercise any such voting rights and powers in any manner which:
(i)has the effect of changing the rights of such shares or of any related rights with respect to such shares, unless specifically permitted by the Agreement; or
(ii)adversely affects the validity or enforceability of such share security or causes a Default to occur, or is otherwise materially prejudicial to the interests of the Collateral Agent and/or the Secured Parties.
(an)Where customary and applicable as a matter of law and following a request by the Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders), as soon as reasonably practicable (taking into account any stamping, endorsement in blank, assignment in blank or other transfer requirements) following the granting of any share security over certificated shares or quotas, the applicable share certificate (or other documents evidencing title to the relevant shares, including any shareholder's register, as applicable) and a stock transfer form executed in blank (or applicable law equivalent) will be provided to the Collateral Agent.
(ao)No security shall be required to be granted over any shares or ownership interests in any person that are not directly owned by its immediate holding company.
(ap)If required under local law, security over shares and/or quotas will be notarised and registered subject to the general principles set out in these Agreed Security Principles. In particular, but not limited to, to the extent applicable, security over shares and/or quotas issued by a Spanish company will be registered in the relevant registry book of shareholders (libro registro de acciones nominativas) and/or the relevant registry book of quotaholders (libro registro de socios) or with the relevant depositary entity and on the titles to property over the shares/quotas; with respect to shares in Polish companies, the information on establishment of share security will be entered into the book of shares (księga udziałów) and into the list of shareholders (lista wspólników), which will be filled together with motions for registrations of registered pledges over shares in each Polish company within the relevant registry courts.
(aq)Unless the restriction is required by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer, approval requirements or the registration of the transfer of the shares on enforcement of the security granted over them or to allow exercising voting rights by the Collateral Agent or to allow the Collateral Agent to convene a general meeting. To the extent applicable, the applicable grantor of the security will use its commercially reasonable efforts to obtain the registration of any needed amendment of the by-laws with the relevant mercantile registry as soon as practicable.
8.Bank accounts
(ar)Until an Applicable Event has occurred and is continuing, unless the Agreement expressly provides for any specific account (by reference to its purpose) to be subject to specific restrictions on use, any Loan Party will be free to deal, operate and transact business in relation to any bank accounts over which it grants security (including opening and closing accounts) until the occurrence of an Applicable Event which is continuing.
(as)If required by local law to create or perfect the security, notice of the security will be served on the account bank in relation to applicable accounts within five (5) Business Days of the creation or intended creation of the security over such account. and the applicable grantor of the security will use its commercially reasonable efforts to obtain a signed acknowledgement of that notice. Irrespective of whether notice of the security is required for perfection, if the service of notice would prevent any member of the Group from using a bank account in the course of its business, no notice of security will be served until the occurrence of an Applicable Event that is continuing.
(at)Any security over bank accounts will be subject to any security interests in favour of the account bank, which are created either by law or in the standard terms and conditions of the account bank. No grantor of security will be required to change its banking arrangements or standard terms and conditions in connection with the granting of bank account security, but will, in relation to accounts in Germany, the Netherlands and Belgium, be required to request the account bank to waive such liens pursuant to its general terms and conditions.
(au)[Reserved].
(av)If any bank account is required to be opened as a matter of local law in order to perfect any share security required to be granted in accordance with these Agreed Security Principles, (i) such bank account shall not be required to be opened prior to the date falling 90 days after such share security is granted and (ii) the Lenders authorise the Collateral Agent to enter into any documentation requested by the applicable account bank in connection with such security.
(aw)If required under applicable local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
9.Moveable Property
(ax)A Foreign Loan Party shall grant security over its moveable property, subject to the general principles in these Agreed Security Principles.
(ay)No security over inventory needs to be granted by a Foreign Loan Party if no security needs to be granted under the ABL Facility.
(az)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Loan Documents, the Foreign Loan Party providing the security is permitted to dispose of and use its moveable assets in accordance with the terms of the Agreement.
(ba)If the granting of effective security over moveable assets gives rise to registration costs or similar taxes or costs, the secured amount under such security will be proportionate to the value of the underlying moveable asset (together with such buffer as may be reasonably agreed by the Administrative Agent (at the direction of the Required Lenders) with the Company to reflect the fluctuating nature of the asset class), and ‘mandates’ to grant security will be granted where customary.
10.Insurance Policies
(bb)Each Foreign Loan Party shall grant security over its insurance policies, subject to the general principles in these Agreed Security Principles and other than insurance proceeds which (i) are payable to third parties, such as proceeds under life, health, group insurance or similar third parties liability insurance policies or (ii) benefit to employees and/or directors, if any.
(bc)No security will be granted over any insurance policy which does not allow security to be granted or which excludes the assignability of the insurance receivables, other than where such grant of security or such assignment is subject only to the consent of the relevant insurer. The provisions of this paragraph shall not operate to jeopardise any floating charge nor any assignment or other security interest over any and all damages, compensation, proceeds or other income attributable to such insurance policies which such Foreign Loan Party may be entitled (or which such Foreign Loan Party may be awarded or otherwise derive therefrom).
(bd)If required by local law to perfect the security or customary in the relevant jurisdiction, notice of the security will be served on the insurer within five Business Days (or less if required or customary under local law) of the security being granted and such Foreign Loan Party shall use its commercially reasonable efforts to obtain a signed acknowledgement of that notice.
11.Intellectual property
(be)A Foreign Loan Party shall grant security over its intellectual property, subject to the general principles in these Agreed Security Principles.
(bf)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Loan Documents, such Foreign Loan Party shall be free to deal with, use, licence and otherwise commercialise those assets in the course of its business (including allowing its intellectual property to lapse if no longer material to its business) to the extent permitted under the Agreement.
(bg)No security will be granted over intellectual property which cannot be secured under the terms of any relevant licensing agreement.
(bh)If required under local law to create or perfect the relevant security, security over intellectual property shall be notarized and/or registered under the law of the jurisdiction of incorporation or formation of the applicable grantor, and no filings, registrations or other steps shall be required to be taken pursuant to the law of any other jurisdiction other than the United States or the United Kingdom, subject to the general principles set out in these Agreed Security Principles.
(bi)Security over intellectual property rights will be taken on an “as is, where is” basis and such Foreign Loan Party will not be required to procure any changes to, or corrections of filings on any registers (unless, subject to this Annex, such changes to, or corrections of, filings are required to validly create such Security).
12.Receivables
(bj)A Foreign Loan Party shall grant security over its receivables, subject to the general principles in these Agreed Security Principles.
(bk)In respect of security over receivables (other than intra-group receivables), notice of the security shall be served on the relevant debtor (other than an intercompany debtor) immediately after a Default, which is continuing. Notice of security over intercompany receivables shall be served on the relevant intercompany debtor within five (5) Business Days of the creation of the security over such receivables.
(bl)Each Foreign Loan Party will use commercially reasonable efforts to amend, after the Closing Date, the respective receivable invoices to mention the Collateral Agent’s security interest in such receivables to the extent required under the laws of the local jurisdiction of the Foreign Loan Party to perfect the security interest.
(bm)The Collateral Agent will receive a floating charge with respect to receivables to the extent a floating charge can be created under local law.
(bn)If required under local law, security over intercompany receivables will be registered and notified to the relevant intra-group debtor subject to the general principles set out in this Annex.
(bo)If a Foreign Loan Party grants security over its receivables, it shall be free to deal with, amend, waive or terminate those receivables in the course of its business and in accordance with the terms of the Agreement until the occurrence of an Applicable Event (other than any amendments or waivers that would materially adversely prejudice the rights of the Secured Parties).
(bp)No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract or if the terms of the relevant contract exclude the assignability of the trade receivables (unless such restrictions are set aside by overriding principles of applicable law). The provisions of this paragraph shall not operate to jeopardise any floating charge, any other security interest in respect of such receivables which is not restricted, any trust arrangement in respect of such receivables or any assignment or other security interest over any and all damages, compensation, proceeds, remuneration, profit, rent or other income attributable to such trade receivables which the Foreign Loan Party may be entitled (or which such Foreign Loan Party may be awarded or otherwise derive therefrom).
(bq)If required under local law security over trade receivables will be registered subject to the general principles set out in this Annex.
(br)Any list of receivables required to be delivered under any security document will not include details of the underlying contracts (but may include non-sensitive generic information to the extent that would allow for the creation of security) unless required under local law or required to enforce the security.
(a)With respect to a French Loan Party, such French Loan Party will grant security over its commercial receivables by way of assignment of any existing or future receivable
(créance existante ou future) due or to be due by any existing or future debtor to such French Loan Party, in each case as originated by such French Loan Party, pursuant to articles L. 313-23 et seq. of the French Monetary and Financial Code (Code monétaire et financier).
13.Additional Principles
These Agreed Security Principles embody the recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or commercially reasonable guarantees and/or security from Foreign Loan Parties in each jurisdiction in which it has been agreed that guarantees and security will be granted by those Foreign Loan Parties. In particular:
(bs)general legal and statutory limitations, regulatory restrictions (including foreign exchange controls), financial assistance, anti-trust and other competition authority restrictions, corporate object, corporate benefit, fraudulent preference, legal and equitable subordination, "transfer pricing", "thin capitalisation", "earnings stripping", "exchange control restrictions", "capital maintenance" rules and "liquidity impairment" rules, tax restrictions, retention of title claims, employee consultation or approval requirements and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited accordingly, provided that, to the extent requested by the Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders) before signing any applicable security or accession document, the relevant member of the group consisting of the Company and its Subsidiaries (the “Group”) shall use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bt)a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or registration) is the applicable time and cost (including adverse effects on taxes, interest deductibility, stamp duty, registration taxes, notarial costs, guarantee fees payable to any person that is not a member of the Group and all applicable legal fees) which will not be disproportionate to the benefit accruing to the Lenders of obtaining such guarantee or security, as determined by the Company and the Required Lenders);
(bu)unless otherwise required by the Agreement, members of the Group will not be required to give guarantees or enter into security documents if they are not directly or indirectly wholly owned by the Company or if it is not within the legal capacity of the relevant members of the Group or if it would conflict with the fiduciary or statutory duties of their directors or contravene any applicable legal, regulatory or contractual prohibition or restriction or have the potential to result in a material risk of personal or criminal liability for any director or officer of or for any member of the Group, provided that, to the extent requested by the Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders) before signing any applicable security document or accession document, the relevant member of the Group shall, in relation to a contractual prohibition or restriction only, use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bv)having regard to the principle in paragraph (b) above, the Company and the Required Lenders shall discuss in good faith (having regard to customary practice in applicable jurisdictions) with a view to determining whether certain security can be provided by
the relevant Foreign Loan Party granting a promise to pledge in favour of the Lenders coupled with an irrevocable power of attorney to the Collateral Agent as opposed to a definitive legal mortgage or pledge over the relevant asset;
(bw)guarantees and security will be limited so that the aggregate of notarial costs and all registration and like taxes and duties relating to the provision of security will not exceed an amount to be agreed between the Company and the Required Lenders;
(bx)where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security to the Lenders, as determined by the Company and the Required Lenders security will be granted over the material assets only;
(by)it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets, as determined by the Company and the Required Lenders, in which event security will not be taken over such assets;
(bz)in each case to the extent the applicable restriction, condition or third party right did not arise in contemplation of the relevant guarantee or grant of security, any asset subject to a legal requirement, contract, lease, licence, instrument, regulatory constraint (including any agreement with any government or regulatory body) or other third party arrangement, which may prevent or condition the asset from being charged, secured or being subject to the applicable security document (including requiring a consent of any third party, supervisory board or works council (or equivalent)) and any asset which, if subject to the applicable security document, would give a third party the right to terminate or otherwise amend any rights, benefits and/or obligations with respect to any member of the Group in respect of the asset or require the relevant chargor to take any action materially adverse to the interests of the Group or any member thereof, in each case will be excluded from a guarantee or security document, provided that commercially reasonable efforts to obtain consent to securing any asset (where otherwise prohibited) shall be used by the Group if the Administrative Agent (acting at the direction of Required Lenders) specifies prior to the date of the security or accession document that the asset is material and the Company is satisfied that such endeavours will not involve placing relationships with third parties in jeopardy;
(ca)the giving of a guarantee, the granting of security and the registration and/or the perfection of the security granted will not be required if it would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Loan Documents (including dealing with the secured assets and all contractual counterparties or amending, waiving or terminating (or allowing to lapse) any rights, benefits or obligations, in each case prior to an Applicable Event which is continuing), and any requirement under these Agreed Security Principles to seek consent of any person or take or not take any other action shall be subject to this paragraph (i);
(cb)any security document will only be required to be notarised if required by law in order for the relevant security to become effective (including against third parties), enforceable or admissible in evidence (including without limitation evidence before third parties);
(cc)to the extent possible and unless required by applicable law in order for any assignee or transferee to benefit from the guarantees or security, there should be no action required to be taken in relation to the guarantees or security when any secured party assigns or transfers any of its participation to a new secured party (and, unless explicitly agreed to the contrary in the Loan Documents, no Foreign Loan Party shall bear or
otherwise be liable for any taxes, any notarial, registration or perfection fees or any other costs, fees or expenses that result from any assignment or transfer by a Lender except if an Applicable Event has occurred and is continuing);
(cd)no title investigations or other diligence on assets will be required and no title insurance will be required;
(ce)security will not be required over any cash constituting regulatory capital or customer cash (and such assets or cash shall be excluded from any relevant security document);
(cf)to the extent legally effective, all security will be given in favour of the Collateral Agent and not the Secured Parties individually (with the Collateral Agent to hold one set of security documents for all the Secured Parties unless otherwise required by local law); "parallel debt" provisions will be used where necessary and recognised; for the avoidance of doubt, in relation to accessory security under German law (akzessorische Sicherheiten), such security will be given in favour of the Collateral Agent and the Secured Parties; it is acknowledged that certain security will be granted for those Secured Parties that satisfy any local law requirements necessary to benefit from such security;
(cg)each security document shall be deemed not to restrict or condition any transaction permitted under the Loan Documents and the security granted under each security document entered into after the Closing Date shall be deemed to be subject to these Agreed Security Principles, before and after the execution of the relevant security document and creation of the relevant security;
(ch)each security document must be provided on terms which are not inconsistent with the turnover or sharing provisions in the Domestic Guarantee Agreement, the Foreign Guarantee Agreement and/or Agreement;
(ci)no guarantee or security shall guarantee or secure any "Excluded Swap Obligations" defined in accordance with the LSTA Market Advisory Update dated February 15, 2013 entitled "Swap Regulations' Implications for Loan Documentation", and any update thereto by the LSTA;
(cj)no translation of any document relating to any security or any asset subject to any security will be required to be prepared or provided to the Secured Parties, unless (i) any document which is to be signed by the Collateral Agent (acting at the direction of the Required Lenders) or any notice to be delivered to the Collateral Agent or (ii) required for such documents to become effective or admissible in evidence or (iii) an Applicable Event is continuing; and
(ck)local security documents may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and delivery of an executed counterpart to any security document by facsimile transmission or other electronic transmission (such as .pdf) shall be effective as delivery of a manually signed counterpart, in each case to the extent such execution is effective under local law.
14.Amendment
In any event of any material conflict or material inconsistency between any term of these Agreed Security Principles and any term of a Security Document or a guarantee, the Secured Parties authorize, instruct and direct the Collateral Agent to, and the Collateral Agent (or the Secured Parties, if required under the relevant jurisdiction) shall promptly (at the option and upon request of the Company prior to
the occurrence of a Default which is continuing) (i) enter into (and notarise if required under the relevant jurisdiction) such amendments to such Security Document or guarantee or (ii) release and terminate such Collateral and enter into a replacement Security Document or guarantee on such amended terms, in each case as shall be necessary or desirable to cure such conflict or inconsistency, provided that (1) any such action (including any actions to be taken by the Lenders) will be at the sole cost of the Company; (2) the relevant Loan Party shall deliver all corporate authorities and legal opinions as may be required by the Collateral Agent; and (3) no such action will be required to be taken in the event such amendment or replacement Security Document or guarantee would result in any hardening period or clawback period to be reset.
15.Execution of applicable Intercreditor Agreements
Any Foreign Loan Party, existing on the Closing Date or hereinafter incorporated, shall sign or acknowledge, as applicable, any Intercreditor Agreement.
Exhibit 10.5
PUBLISHED DEAL CUSIP: 25365TAE2 DOLLAR TERM FACILITY CUSIP: 25365TAF9 EURO TERM FACILITY CUSIP: 25365TAG7
DIEBOLD NIXDORF, INCORPORATED
CREDIT AGREEMENT
dated as of December 29, 2022
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and
GLAS AMERICAS LLC,
as Collateral Agent and
THE LENDERS PARTY HERETO
JPMORGAN CHASE BANK, N.A.,
as Lead Bookrunner and Lead Arranger
TABLE OF CONTENTS
Page
EXHIBITS
EXHIBIT A ASSIGNMENT AND ASSUMPTION AGREEMENT EXHIBIT B [RESERVED]
EXHIBIT C NOTE
EXHIBIT D TAX CERTIFICATE EXHIBIT E SOLVENCY CERTIFICATE
EXHIBIT F COMPLIANCE CERTIFICATE
EXHIBIT G SUBORDINATION AGREEMENT EXHIBIT I EXCHANGE MECHANICS
SCHEDULES
SCHEDULE 1.1(a) COMMITMENTS
SCHEDULE 1.1(b) FOREIGN COLLATERAL AGREEMENTS SCHEDULE 2.6.5(c) SCHEDULED LOAN PREPAYMENT
SCHEDULE 5.7 LITIGATION AND GUARANTEE OBLIGATIONS SCHEDULE 5.8 SUBSIDIARIES
SCHEDULE 5.17 INTELLECTUAL PROPERTY SCHEDULE 6.15 INVESTMENTS
SCHEDULE 6.16 LIENS
SCHEDULE 6.18 INDEBTEDNESS
SCHEDULE 6.32 POST-CLOSING OBLIGATIONS ANNEXES
ANNEX I AGREED SECURITY PRINCIPLES
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this “Agreement”), dated as of December 29, 2022, is among DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Company”), the Lenders from time to time parties hereto (as defined below), JPMORGAN CHASE BANK, N.A., as administrative agent (the “Administrative Agent”) and GLAS AMERICAS LLC, as collateral agent (the “Collateral Agent”).
The parties hereto agree as follows:
ARTICLE I DEFINITIONS
1.16.Defined Terms. As used in this Agreement, the following terms shall have the following meanings: “2024 Consent Solicitation and Exchange Offer” has the meaning assigned to such term in the Transaction Support
Agreement.
“2024 Notes” means the Company’s 8.5% Senior Notes due 2024 issued pursuant to the 2024 Notes Indenture. “2024 Notes Indenture” means that certain indenture, dated as of April 19, 2016, among the Company, as issuer, the
subsidiary guarantors party thereto from time to time, and the 2024 Trustee, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Company’s 8.5% Senior Notes due 2024.
“2024 Trustee” means U.S. Bank Trust Company, National Association.
“2025 Consent Solicitation” has the meaning assigned to such term in the Transaction Support Agreement.
“2025 Euro Notes” means the Dutch Issuer’s 9.000% Senior Secured Notes due 2025 issued pursuant to the 2025 Euro Notes Indenture.
“2025 Euro Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 Euro Notes Indenture, or any successor representative acting in such capacity.
“2025 Euro Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Dutch Issuer, as issuer, the Company, as guarantor, the subsidiary guarantors from time to time, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, the 2025 Euro Notes Trustee and the 2025 Euro Notes Collateral Agent, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Dutch Issuer’s 9.000% Notes due 2025.
“2025 Euro Notes Trustee” means U.S. Bank Trust Company, National Association until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 Euro Notes Indenture and thereafter means the successor serving thereunder.
“2025 Notes” means the 2025 U.S. Notes and the 2025 Euro Notes.
“2025 Notes Collateral Agents” means the 2025 U.S. Notes Collateral Agent and the 2025 Euro Notes Collateral Agent. “2025 Notes Indentures” means the 2025 U.S. Notes Indenture and the 2025 Euro Notes Indenture.
“2025 Notes Trustees” means the 2025 U.S. Notes Trustee and the 2025 Euro Notes Trustee.
“2025 U.S. Notes” means the Company’s 9.375% Senior Secured Notes due 2025 issued pursuant to the 2025 U.S. Notes Indenture.
“2025 U.S. Notes Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the 2025 U.S. Notes Indenture, or any successor representative acting in such capacity.
“2025 U.S. Notes Indenture” means that certain indenture, dated as of July 20, 2020, among the Company, as issuer, the subsidiary guarantors from time to time, the 2025 U.S. Notes Trustee and the 2025 U.S. Notes Collateral Agent, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Company’s 9.375% Notes due 2025.
“2025 U.S. Notes Trustee” means U.S. Bank Trust Company, National Association until such time, if any, that a successor replaces such party in accordance with the applicable provisions of the 2025 U.S. Notes Indenture and thereafter means the successor serving thereunder.
“ABL Collateral Agent” means (a) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party other than an ABL Loan Party incorporated under the laws of a Specified Foreign Jurisdiction (other than Canada), JPMorgan Chase Bank, N.A. (together with its successors and assigns), as collateral agent for the ABL Secured Parties and (b) in the case of any ABL Priority Collateral owned or hereinafter acquired by any ABL Loan Party incorporated under the laws of a
Specified Foreign Jurisdiction (other than Canada), GLAS Americas LLC (together with its successors and assigns) as collateral agent for the ABL Secured Parties.
“ABL Facility” shall mean the asset-based revolving credit agreement, dated as of the Closing Date, among the Company, the guarantors party thereto, the lenders party thereto, the ABL Facility Administrative Agent and the ABL Collateral Agent, as amended, restated, amended and restated, supplemented, modified, substituted, replaced or refinanced, in whole or in part, from time to time in accordance with the terms hereof and the ABL Intercreditor Agreement (whether with the original administrative agent and lenders or other agents and lenders or otherwise and whether provided under the original ABL Facility or another credit agreement, indenture, instrument, other document or otherwise, unless such credit agreement, indenture, instrument or document expressly provides that it is not an ABL Facility).
“ABL Facility Administrative Agent” means JPMorgan Chase Bank, N.A. in its capacity as the administrative agent under the ABL Facility, or any successor representative acting in such capacity.
“ABL Facility Documentation” shall mean the ABL Facility and the other “Credit Documents” (as defined in the ABL Facility) (as in effect on the date hereof and as amended or modified from time to time in accordance with the terms hereof and the ABL Intercreditor Agreement).
“ABL Intercreditor Agreement” means that certain ABL Intercreditor Agreement, dated as of the Closing Date, by and among the ABL Collateral Agent, the ABL Facility Administrative Agent, the Administrative Agent, the Collateral Agent, the New 2L Notes Collateral Agent, the New 2L Notes Trustee, the Superpriority Term Loan Facility Collateral Agent, Superpriority Term Loan Facility Administrative Agent, the 2025 Euro Notes Collateral Agent, the 2025 Euro Notes Trustee, the 2025 U.S. Notes Collateral Agent, the 2025 U.S. Notes Trustee, the Existing Term Loan Facility Collateral Agent, the Existing Term Loan Facility Administrative Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“ABL Loan Parties” means the “Credit Parties” as defined in the ABL Facility.
“ABL Priority Collateral” means “ABL Priority Collateral” as defined in the ABL Intercreditor Agreement. “ABL Secured Parties” means the “Secured Parties” as defined in the ABL Facility.
“Accepting Lenders” has the meaning set forth in Section 2.22.1.
“Acquisition” means any transaction, or any series of related transactions, consummated on or after the date of this Agreement, by which the Company or any of its Subsidiaries (i) acquires any going business or all or substantially all of the assets of any Person, business line or division thereof, whether through purchase of assets, merger, amalgamation or otherwise or
(ii) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of votes) of the Voting Stock of any Person or, with respect to any non-wholly owned Subsidiary, additional Voting Stock thereof.
“Additional Agreement” has the meaning set forth in Section 11.9(e).
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) 0.10%; provided that if Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Loan denominated in Dollars, for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” means GLAS USA LLC in its capacity as contractual representative of the Lenders appointed pursuant to Article XI, and not in its individual capacity, and any successor Administrative Agent appointed pursuant to Article XI.
“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by or otherwise acceptable to the Administrative Agent.
“Advance” means a borrowing hereunder (or conversion or continuation thereof) consisting of the aggregate amount of the several Loans of the same Type, Class and, in the case of Term Benchmark Loans, for the same Interest Period, made by the Lenders on the same Borrowing Date (or converted or continued by the Lenders on the same date of conversion or continuation).
“Affected Class” has the meaning set forth in Section 2.22.1.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affiliate” of any Person means any other Person directly or indirectly controlling, controlled by or under common control with such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management or policies of the controlled Person, whether through ownership of Capital Stock, by contract or otherwise.
“Agents” means, collectively, the Administrative Agent and the Collateral Agent. “Agreed Currency” means Dollars and Euros.
“Agreed Security Principles” has the meaning set forth on Annex I.
“Aggregate Commitments” means the aggregate Dollar Equivalent Amount of the Commitments of all Lenders. “Aggregate Outstandings” means as at any date of determination with respect to any Lender, the sum of the Dollar
Equivalent Amount on such date of the aggregate unpaid principal amount of such Lender’s Loans on such date. “Agreement” is defined in the recitals hereto.
“Agreement Currency” is defined in Section 16.6.
“All-in Yield” means the yield of the applicable Indebtedness, whether in the form of interest rate, margin, commitment or ticking fees, original issue discount, upfront fees, index floors or otherwise, in each case payable generally to lenders, provided that original issue discount and upfront fees shall be equated to interest rate assuming a four-year life to maturity, and shall not include arrangement fees, structuring fees or other fees not paid to the applicable lenders generally.
“Alternative Currency” means Euros and any additional currencies determined after the Closing Date by mutual agreement of the Company, Lenders and Administrative Agent; provided that each such currency is a lawful currency that is readily available, freely transferable and not restricted and able to be converted into Dollars.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day,
(b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%; provided that for the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. New York time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 2.20 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.20(b)), then the Alternate Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 2.50%, such rate shall be deemed to be 2.50% for purposes of this Agreement.
“Amendments” has the meaning assigned to such term in the Transaction Support Agreement.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Loan Parties or their Subsidiaries from time to time primarily or in any material manner concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, the Corruption of Foreign Public Officials Act (Canada) and the United Kingdom Bribery Act of 2010.
“Applicable Margin” means (a) in the case of Term Benchmark Loans (i) denominated in Dollars, 5.25% and
(ii) denominated in Euros, 5.50% and (b) in the case of Floating Rate Loans, 4.25%.
“Applicable Time” means, with respect to any Borrowings and payments in any Alternative Currency, the local time in the place of settlement for such Alternative Currency as may be determined by the Administrative Agent, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.
“Approved Fund” has the meaning assigned to such term in Section 13.1.
“Arranger” means JPMorgan Chase Bank, N.A., in its capacity as lead arranger and bookrunner. “Article” means an article of this Agreement unless another document is specifically referenced.
“Asset Sale Prepayment Event” means any Disposition of property or series of related Dispositions of property (excluding any such Disposition permitted by Section 6.14 other than clauses (vi) and (xvi)) that yields gross proceeds to the Company or any Subsidiary (valued at the initial principal amount thereof in the case of non-cash proceeds consisting of notes or other debt securities and valued at fair market value in the case of other non-cash proceeds) in excess of $5,000,000, provided that all such
Dispositions excluded under such de-minimis exception (including any Recovery Events excluded pursuant to the definition thereof) shall not exceed $15,000,000 in any fiscal year of the Company.
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 13.1), and accepted by the Administrative Agent, substantially in the form of Exhibit A attached hereto or any other form approved by the Administrative Agent.
Authorized Officer” means, as applied to any Person, the principal executive officers, managing members or general partners of such Person, including any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents, chief financial officer, treasurer, assistant treasurer, controller, secretary or assistant treasurer (but, in any event, with respect to financial matters, “Authorized Officer” shall mean such Person’s chief
financial officer, treasurer, assistant treasurer or controller) or, in each case, the equivalent thereof and provided such officer is authorized to represent that Loan Party.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then- removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.20.
“BaFin” means the German Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht).
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) 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, regulation rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bankruptcy Event” means, with respect to any Lender or a Parent of any Lender, such Lender or Parent becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, interim receiver, monitor, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of (x) any ownership interest, or the acquisition of any ownership interest, in such Lender or Parent by a Governmental Authority or instrumentality thereof or (y) in the case of a solvent Lender and Parent, the precautionary appointment of an administrator, guardian or custodian or similar official by a Governmental Authority under or based on the law of the country where such Lender or Parent is organized if the applicable law of such jurisdiction requires that such appointment not be publicly disclosed; provided, further, that such ownership interest or appointment does not result in or provide such Lender or Parent with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender or Parent (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Lender or Parent.
“Belgian Collateral Agreements” means the collateral agreements governed by Belgian law set forth on Schedule 1.1(b) hereof.
“Belgian Collateral Documents” means the Belgian Collateral Agreements and each security agreement or other instrument or document, as applicable, governed by Belgian law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Belgian Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Belgian Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Belgium.
“Benchmark” means, initially, with respect to any Term Benchmark Loan, the Relevant Rate; provided that if a Benchmark Transition Event, and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause (b) of Section 2.20.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Alternative Currency, “Benchmark Replacement” shall mean the alternative set forth in (2) below:
(1)in the case of any Loan denominated in Dollars, the Adjusted Daily Simple SOFR;
(2)the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Company as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark Replacement Adjustment;
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be equal to the Floor for the purposes of this Agreement and the other Loan Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Company for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan denominated in Dollars, any technical, administrative or operational changes (including changes to the
definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1)in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2)in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.20.
“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 and subject to 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.”
“Bi-lateral LC/WC Agreement” means an agreement between the Company and/or any of its Subsidiaries and a financial institution providing for the issuance of letters of credit, bank guarantees and/or similar obligations which agreement has been designated in writing as a Bi-lateral LC/WC Agreement by the Company to the Administrative Agent, which designation shall include a certification as to the maximum principal exposure amount permitted under such agreement. For the avoidance of doubt the Company may rescind such designation (or deliver a certificate certifying as to a modified amount of such maximum exposure amount that shall constitute Obligations) by written notice to the Administrative Agent.
“Board of Directors” means: (a) with respect to a corporation, the board of directors of the corporation or such directors or committee serving a similar function (including (but not limited to) the “Vorstand” of a German stock corporation); (b) with respect to a limited liability company, the board of managers of the company or such managers or committee serving a similar function (including (but not limited to) the “Geschäftsführung” of a German limited liability company); (c) with respect to a
partnership, the Board of Directors of the general partner of the partnership (including (but not limited to) the “Komplementär” of a German partnership); and (d) with respect to any other Person, the managers, directors, trustees, board or committee of such Person or its owners serving a similar function.
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12
U.S.C. 1841(k)) of such party.
“Blocking Regulation” means Council Regulation (EC) 2271/96.
“Borrowing Date” means any Business Day specified in a notice pursuant to Section 2.3 as a date on which the Company requests the Lenders to make Loans hereunder.
“Borrowing Notice” is defined in Section 2.3.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed. Notwithstanding the foregoing, when the term “Business Day” is used (a) in relation to Loans referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the
Adjusted Term SOFR Rate, any such day that is a U.S. Government Securities Business Day, (b) in any Foreign Loan Document or in relation to the performance of any obligation under the Loan Documents by any Foreign Loan Party that is a party, the
“Business Day” means any day other than a day on which commercial banks in the applicable jurisdiction are authorized or required by law to remain closed or (c) in relation to Term Loans denominated in Euros and in relation to the calculation or computation of EURIBOR, any day which is a TARGET Day.
“Canadian Collateral Agreement” means, collectively, the Canadian security agreement among the Loan Parties party thereto and the Collateral Agent, in form and substance reasonably satisfactory to the Collateral Agent (acting at the direction of the Required Lenders), and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Canadian law in connection with this Agreement and the Canadian Collateral and Guarantee Requirement to secure any of the Obligations.
“Canadian Collateral and Guarantee Requirement” means, at any time and solely with respect to each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Administrative Agent and the Collateral Agent shall have received from (i) each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Foreign Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Foreign Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, (ii) each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Canadian Collateral Agreement and, if applicable, a deed of hypothec, each in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each Canadian Loan Party or Canadian Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Closing Date, documents and, to the extent reasonably requested by the Administrative Agent or the Collateral Agent (each acting at the direction of the Required Lenders), opinions, documents and certificates of the type referred to in Section 4.1;
(b)all outstanding Equity Interests of any Subsidiary of the Company (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Canadian Loan Party shall have been pledged pursuant to the Canadian Collateral Agreement and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Canadian Loan Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Canadian Collateral Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including PPSA financing statements, Control Agreements and intellectual property security agreements, required by the Canadian Collateral Agreement or Requirements of Law and reasonably requested by the Administrative Agent, acting at the direction of the Required Lenders, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Canadian Collateral Agreement and perfect such Liens to the extent required by, and with the priority required by, the Canadian Collateral Agreement and the other provisions of the term “Canadian Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording;
(e)the Collateral Agent shall have received as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree)
(i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Collateral Agent, acting at the direction of the Required Lenders) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Company and agreed to by the Collateral Agent, acting at the direction of the Required Lenders, issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.16, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Administrative Agent, acting at the direction of the Required Lenders, may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements
contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer) and (vi) such legal opinions as the Administrative Agent or Collateral Agent, acting at the direction of the Required Lenders, may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Canadian Loan Party on the Closing Date, each Canadian Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), (ii) with respect to any Required Account established by a Canadian Loan Party after the Closing Date, each Canadian Loan Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), and (iii) with respect to any Required Account acquired by a Canadian Loan Party after the Closing Date, each Canadian Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Administrative Agent, acting at the direction of the Required Lenders. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account maintained by a Canadian Loan Party so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement or (ii) the Lien thereon securing the obligations under the Superpriority Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Canadian Loan Parties, or the provision of Guarantees by any Canadian Subsidiary (i) if, and for so long as and to the extent that the Administrative Agent, acting at the direction of the Required Lenders, and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other Taxes)), outweighs the benefits to be obtained by the Lenders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the PPSA or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral of the Canadian Loan Parties shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the PPSA or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Canadian Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Canadian Collateral Agreement, (c) except with respect to any Required Accounts, in no event shall Control Agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of PPSA financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 other than the filing of PPSA financing statements and, other than the filing of PPSA financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Loan Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. or Canadian jurisdiction or required by the laws of any non-U.S. or Canadian jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States or Canada (including any Equity Interests of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets, (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of PPSA financing statements), (h) no Loan Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Assets. The Administrative Agent, acting at the direction of the Required Lenders, may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any
perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing Term Loan Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Canadian Defined Benefit Plan” means a pension plan for the purposes of any applicable pension benefits standards statute or regulation in Canada, which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Income Tax Act (Canada).
“Canadian Loan Party” means any Loan Party incorporated, formed or otherwise organized under the laws of Canada or a province or territory thereof.
“Canadian Pension Event” means (a) the whole or partial withdrawal of a Canadian Loan Party or another Loan Party from a Canadian Defined Benefit Plan during a plan year; or (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan or the treatment of a Canadian Defined Benefit Plan amendment as a termination or partial termination; or (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee appointed to administer a Canadian Defined Benefit Plan; (d) any statutory deemed trust or Lien, other than a Permitted Encumbrance, arises in connection with a Canadian Defined Benefit Plan, or (e) any other event or condition which might constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of trustee to administer, any Canadian Defined Benefit Plan.
“Canadian Pension Plan” means a pension plan that is covered by the applicable pension standards laws of any jurisdiction in Canada including the Pension Benefits Act (Ontario) and the Income Tax Act (Canada) and that is either (a) maintained or sponsored by a Loan Party for employees or (b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which the Loan Party is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions, but “Canadian Pension Plan” shall not include the Canada Pension Plan (CPP) as maintained by the Government of Canada or the Quebec Pension Plan (QPP) as maintained by the Government of Quebec or the Ontario Retirement Pension Plan.
“Canadian Subsidiary” means each Subsidiary incorporated, formed or organized, under the laws of Canada or a province or territory thereof.
“Capital Stock” means (i) in the case of any corporation, all capital stock and any securities exchangeable for or convertible into capital stock and any warrants, rights or other options to purchase or otherwise acquire capital stock or such securities or any other form of equity securities, (ii) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock, (iii) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited) and (iv) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
“Cash Equivalents” means (i) Dollars, Canadian Dollars, Swiss Francs, Pounds Sterling, Japanese Yen, Euros, any national currency of any participating member state of the EMU; (ii) securities issued directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof), (iii) Dollar denominated time deposits, certificates of deposit, demand deposits, overnight bank deposits and bankers’ acceptances of any domestic or foreign commercial bank having capital and surplus of not less than
$500,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of non-U.S. banks (any such bank, an “Approved Lender”), (iv) commercial paper issued by any Lender or Approved Lender or by the parent company of any Lender or Approved Lender, commercial paper with a short-term commercial paper rating of at least investment grade or the equivalent thereof, marketable short-term money market and similar funds of at least investment grade or the equivalent thereof, (v) investment grade bonds and preferred stock of investment grade companies, including but not limited to municipal bonds, corporate bonds, treasury bonds, etc., (vi) readily marketable direct obligations issued by (x) any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof or
(y) any foreign government or any political subdivision or public instrumentality, in each case of at least investment grade or the equivalent thereof, (vii) foreign Investments that are of similar type of, and that have a rating comparable to, any of the Investments referred to in the preceding clauses (i) through (vi) above, (viii) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (i) through (vii) above and (ix) other securities and financial instruments which offer a security comparable to those listed above.
“CBR Loan” means a Loan that bears interest at a rate determined by reference to the Central Bank Rate. “CBR Spread” means the Applicable Margin, applicable to such Loan that is replaced by a CBR Loan.
“Central Bank Rate” means, the greater of (I)(A) for any Loan denominated in (a) Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the
deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time and (b) any other Alternative Currency determined after the Effective Date, a central bank rate as determined by the Administrative Agent in its reasonable discretion; plus (B) the applicable Central Bank Rate Adjustment and (II) the Floor.
“Change in Law” means the occurrence, after the date of this Agreement of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rules, guideline, requirement or directive (whether or not having the force of law) by any Governmental Authority; provided, however, that notwithstanding anything herein to the contrary, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives thereunder, issued in connection therewith or in implementation thereof, and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory
authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law” regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means (i) any Person, including a “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) which includes such Person, other than the Consenting Party Group, shall purchase or otherwise acquire, directly or indirectly, beneficial ownership of Voting Stock of the Company and, as a result of such purchase or acquisition, any such Person (together with its Affiliates), shall directly or indirectly beneficially own in the aggregate Voting Stock representing more than 30% of the combined voting power of the Company’s Voting Stock;
(ii) [reserved] or (iii) any event or circumstance which causes a “ change of control” (as such term (or any reasonably synonymous term) is defined under any of the ABL Facility, the Superpriority Term Loan Facility, the Existing Term Loan Facility, the 2025 Notes Indentures, the 2024 Notes Indenture or the New 2L Notes Indenture (or under any documents governing any Indebtedness with aggregate principal amount in excess of $50,000,000 that has refinanced any of the foregoing)).
“Charges” is defined in Section 10.12.
“Class”, when used in reference to any Loan or Commitment, refers to whether such Loan is, as the context requires, a Dollar Term Loan, Euro Term Loan, Term Loan or an extended Term Loan, and when used in reference to a Commitment, refers to whether such Commitment is a Dollar Term Commitment, Euro Term Commitment, Term Commitment or an extended Term Loan Commitment. For the avoidance of doubt, each extended Term Loan is of a different Class than the Class or Classes of Term Loan from which it was converted.
“Closing Date” means the first date on which all conditions precedent set forth in Section 4.1 are satisfied or waived in accordance with Section 8.2.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward- looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
“Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time. “Collateral” means, collectively, all of the assets and property (including Capital Stock) and interests therein and proceeds
thereof, whether now owned or hereafter acquired, in or upon which a Lien is granted pursuant to any of the Security Documents
as security for the Obligations, as applicable, but shall in all events with respect to Loan Parties organized or incorporated outside the United States (or any state or territory thereof), other than the Canadian Loan Parties, be limited by and subject in all respects to the Agreed Security Principles and exclude all Foreign Excluded Assets.
“Collateral Agent” means GLAS Americas LLC in its capacity as collateral agent appointed pursuant to Article XI and not in its individual capacity, and any successor Collateral Agent appointed pursuant to Article XI.
“Collateral and Guarantee Requirements” means, at any time, collectively, the Domestic Collateral and Guarantee Requirement, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
“Commitments” means, with respect to each Term Lender, the commitment, if any, of such Term Lender to make Term Loans hereunder on the Closing Date, expressed as an amount representing the maximum principal amount of the Term Loans to be made by such Term Lender hereunder, as such commitment may be reduced or increased from time to time pursuant to Sections 2.4, 13.1 or any other applicable provisions hereof. The initial amount of each Lender’s Commitment is set forth on Schedule 1.1(a) or, otherwise, in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as the case may be.
“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.
“Company” is defined in the preamble hereto. “Compliance Certificate” is defined in Section 6.1(iv).
“Condemnation” is defined in Section 7.8.
“Consenting Party Group” means a “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) comprised of the Consenting Parties (as defined in the Transaction Support Agreement); provided that no individual Consenting Party shall own, purchase or otherwise acquire, directly or indirectly, beneficial ownership of Voting Stock of the Company resulting in such Consenting Party (together with its Affiliates), directly or indirectly beneficially owning in the aggregate Voting Stock representing more than 30% of the combined voting power of the Company’s Voting Stock owned by the Consenting Party Group. For the avoidance of doubt, there shall be only one Consenting Party Group.
“Consolidated Net Income” means as of any period, the consolidated net income (or loss) of the Company and its Subsidiaries for such period determined in conformity with GAAP.
“Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004 (UK).
“Control Agreement” means an agreement, in form and substance reasonably satisfactory to the Administrative Agent (and, in the case of protections for the benefit of the Collateral Agent or obligations of the Collateral Agent, the Collateral Agent) (acting at the direction of the Required Lenders), which provides for the Collateral Agent to have control (including “control” as defined in Section 9-104 of the UCC or Section 8-106 of the UCC, as applicable) of “deposit accounts” (as defined in the UCC or the Canadian Collateral Agreement, as applicable) or “securities accounts” (as defined in the UCC or PPSA), as applicable.
“Controlled Group” means all members of a controlled group of corporations, within the meaning of Section 414(b) of the Code, of which the Company is a member, all trades or businesses (whether or not incorporated) that are under common control, within the meaning of Section 414(c) of the Code, with the Company or, for purposes of provisions relating to Section 412 of the Code or Section 302 of ERISA, all members of an affiliated service group, within the meaning of Section 414(m) or (o) of the Code, of which the Company is a member.
“Conversion/Continuation Notice” is defined in Section 2.7.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Covered Party” has the meaning assigned to it in Section 17.3.
“Credit Facilities” means the Commitments and the extensions of credit made thereunder.
“DAC6” means the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Day prior to (i) if such SOFR Rate Day is a
U.S. Government Securities Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Company.
“Debtor Relief Law” means, collectively, the Bankruptcy Code of the United States, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement involving a compromise of claims of its creditors), the German insolvency code (Insolvenzordnung), in the case of a Belgian Loan Party, Book XX (Insolventie van ondernemingen/Insolvabilité des entreprises) of the Belgian Code of Economic Law, and all other liquidation, compromise, conservatorship, administration, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada, Germany, Belgium, France or other applicable jurisdictions from time to time in effect (including any applicable companies or corporations legislation to the extent the relief sought under such companies or corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt).
“Default” means an event described in Article VII.
“Defaulting Lender” means any Lender that (a) has failed, within two Business Days of the date required to be funded or paid, to (i) fund any portion of its Loans, (ii) [reserved] or (iii) pay over to any Secured Party any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Administrative Agent in writing that such
failure is the result of such Lender’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) has notified the Company or any Secured Party in writing, or has made a public statement to the effect, that it does not intend or expect to comply with any of its funding obligations under this Agreement (unless such writing or public statement indicates that such position is based on such Lender’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a loan under this Agreement cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) has failed, within three Business Days after request by the Administrative Agent, acting in good faith, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund prospective Loans under this Agreement, provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon such Secured Party’s receipt of such certification in form and substance reasonably satisfactory to it and the Administrative Agent, (d) has become the subject of a Bankruptcy Event or (e) has, or has a direct or indirect parent company that has, become the subject of a Bail-In Action.
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81,
47.2 or 382.1, as applicable.
“Designated Financial Officer” means, with respect to the Company, its chief financial officer, director of treasury services, treasurer, assistant treasurer, or any position similar to any of the foregoing.
“Designated Lender” means Bank of America, N.A.; provided if Bank of America, N.A. ceases to be a Lender, there shall be no Designated Lender.
“Disposition” means with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Equity Interests” means any Equity Interest that by its terms (or by the terms of any security or other Equity Interest 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 Capital Stock of such Person that does not constitute Disqualified Equity Interests), pursuant to a sinking fund obligation or otherwise, (b) is redeemable (other than solely for Capital Stock of such Person that does not constitute Disqualified Equity Interests) at the option of the holder thereof, in whole or in part, (c) provides for scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interest (other than solely for Capital Stock of such Person that does not constitute Disqualified Equity Interests) that would constitute Disqualified Equity Interests, in each case, on or prior to the 91st day following the Latest Maturity Date; provided that (i) any Equity Interests that would constitute Disqualified Equity Interests solely because the holders thereof have the right to require the Company to repurchase such Disqualified Equity Interests upon the occurrence of a change of control or asset sale shall not constitute Disqualified Equity Interests if the terms of such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) provide that the Company may not repurchase or redeem any such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) pursuant to such provision unless the Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) are fully satisfied prior thereto or simultaneously therewith and (ii) only the portion of the Equity Interests meeting one of the foregoing clauses (a) through (d) prior to the date that is ninety-one (91) days after the Latest Maturity Date will be deemed to be Disqualified Equity Interests. Notwithstanding the preceding sentence, (A) if such Equity Interest is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Company or any Subsidiary, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Equity Interest held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Company (or any Subsidiary) shall be considered Disqualified Equity Interests because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified Lender” means (a) banks, financial institutions and other institutional lenders separately identified in writing by the Company to the Administrative Agent prior to the Closing Date, (b) any competitors of the Company or its Subsidiaries that were separately identified in writing by the Company to the Administrative Agent from time to time on three (3) Business Days’ prior written notice, and (c) in the case of each of the entities covered by clauses (a) and (b), any of their Affiliates (other than bona fide debt funds) that are either (i) identified in writing by the Company to the Administrative Agent from time to time or (ii) clearly identifiable solely on the basis of the similarity of such Affiliate’s name to an entity set forth on the Disqualified Lender list pursuant to clauses (a) and (b). In no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee is a Disqualified Lender or have any liability with respect to any assignment made to a Disqualified Lender. There shall be no retroactive disqualification of an entity that has (i) acquired an assignment or participation interest, (ii) entered into a trade for either of the foregoing or (iii) become a competitor of the Company or its Subsidiaries, in each case, before such entity is added to the Disqualified Lender list. The Administrative Agent may post the Disqualified Lender list to its agency intralinks or similar site, for access by all Lenders (private and public). Any updates to the Disqualified Lender list shall not become effective until 3 Business Days after receipt of such update by the Administrative
Agent at JPMDQ_Contact@jpmorgan.com or the end of such lesser time period, if any, as is acceptable to the Administrative Agent.
“Dollar Equivalent Amount” of any currency at any date shall mean (i) the amount of such currency if such currency is in Dollars or (ii) the Equivalent Amount of Dollars if such currency is any currency other than Dollars as determined pursuant to Section 1.5.
“Dollar Term Commitment” means, with respect to each Term Lender, the commitment, if any, of such Term Lender to make Dollar Term Loans hereunder, expressed as an amount representing the maximum principal amount of the Dollar Term Loans to be made by such Term Lender hereunder, as such commitment may be reduced or increased from time to time pursuant to Sections 2.4, 2.19, 13.1 or any other applicable provisions hereof. The initial amount of each Lender’s Dollar Term Commitment is set forth on Schedule 1.1(a) under the caption “Dollar Term Commitment” or, otherwise, in the Assignment and Assumption pursuant to which such Lender shall have assumed its Dollar Term Commitment, as the case may be.
“Dollar Term Facility” means the Dollar Term Commitments and the extensions of credit made thereunder. “Dollar Term Lender” means a Lender with a Dollar Term Commitment or an outstanding Dollar Term Loan.
“Dollar Term Loan” means the loans made (or deemed made) by the Lenders to the Company pursuant to Section 2.1(a)(i). “Dollars”, “U.S. Dollars” and “$” means lawful currency of the United States of America.
“Domestic Collateral and Guarantee Requirement” means, at any time and solely with respect to each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary, the requirement that:
(a)the Administrative Agent and the Collateral Agent shall have received from (i) each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Domestic Guarantee Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Domestic Guarantee Agreement, in the form specified therein, duly executed and delivered on behalf of such Person, (ii) each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of the Security Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and
(iii) each Domestic Loan Party or Domestic Subsidiary of the Company not constituting an Excluded Subsidiary either (x) a counterpart of each Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Domestic Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to each Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Loan Documents executed and delivered after the Closing Date, documents and, to the extent reasonably requested by the Administrative Agent or the Collateral Agent (each acting at the direction of the Required Lenders), opinions, documents and certificates of the type referred to in Section 4.1;
(b)all outstanding Equity Interests of the Company and the Subsidiaries (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Domestic Loan Party shall have been pledged pursuant to the Security Agreement and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Company or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Domestic Loan Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Security Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, Control Agreements and intellectual property security agreements, required by the Security Documents or Requirements of Law and reasonably requested by the Administrative Agent, acting at the direction of the Required Lenders, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Security Documents and perfect such Liens to the extent required by, and with the priority required by, the Security Documents and the other provisions of the term “Domestic Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording;
(e)the Collateral Agent shall have received as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree)
(i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Collateral Agent, acting at the direction of the Required Lenders) of the fair market value of such Mortgaged Property and fixtures, as reasonably
determined by the Company and agreed to by the Collateral Agent, acting at the direction of the Required Lenders, issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.16, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Collateral Agent, acting at the direction of the Required Lenders, may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Collateral Agent, acting at the direction of the Required Lenders, of payment by the Company or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vi) completed “Life-of-Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Company and each Loan Party relating thereto), (vii) if any Mortgaged Property is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors and the other Flood Insurance Regulations and as required under Section 6.9, and (viii) such legal opinions as the Administrative Agent or the Collateral Agent, acting at the direction of the Required Lenders, may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)(i) with respect to any Required Account maintained by a Domestic Loan Party on the Closing Date, each Domestic Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), (ii) with respect to any Required Account established by a Domestic Loan Party after the Closing Date, each Domestic Loan Party shall have obtained a Control Agreement with respect to such Required Account as soon as possible and in any event within 90 days after the opening of such Required Account (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree), and (iii) with respect to any Required Account acquired by a Domestic Loan Party after the Closing Date, each Domestic Loan Party shall have obtained a Control Agreement with respect to such Required Account, as soon as possible and in any event within 90 days after the date of such acquisition (or such later date as the Administrative Agent, acting at the direction of the Required Lenders, shall reasonably agree) (unless such account is closed prior to such date), in each case, unless waived by the Administrative Agent, acting at the direction of the Required Lenders. Notwithstanding the foregoing, no Control Agreement shall be required with respect to any Required Account so long as (i) such Required Account constitutes ABL Priority Collateral and the Lien thereon securing the obligations under the ABL Facility is subject to the ABL Intercreditor Agreement or (ii) the Lien thereon securing the obligations under the Superpriority Facility is subject to the Intercreditor Agreements.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Loan Parties, or the provision of Guarantees by any Subsidiary (i) if, and for so long as and to the extent that the Administrative Agent, acting at the direction of the Required Lenders, and the Company reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to the Company and its Subsidiaries (including the imposition of material withholding or other Taxes)), outweighs the benefits to be obtained by the Lenders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or
(C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Domestic Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Security Documents, (c) except with respect to any Required Accounts, in no event shall control agreements or other control or similar arrangements be required with respect to deposit accounts, securities accounts, commodities accounts or other assets specifically requiring perfection by control agreements, (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (e) no perfection actions shall be required with
respect to commercial tort claims with a value less than $2,000,000 and, other than the filing of UCC financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Loan Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that except as set forth in the Foreign Loan Documents or as expressly required by the Agreed Security Principles, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) no Loan Party shall be required to seek any landlord lien waiver, estoppel, warehouseman waiver or other collateral access or similar letter or agreement and (i) in no event shall the Collateral include any Excluded Assets. The Administrative Agent, acting at the direction of the Required Lenders, may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of any Guarantee by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Security Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, subject to the terms of the Intercreditor Agreements (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing Term Loan Facility and/or the ABL Facility, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Domestic Guarantee Agreement” means the Domestic Guarantee Agreement, dated as of the Closing Date and as further supplemented or modified from time to time, among the Domestic Loan Parties and the Administrative Agent, in form and substance acceptable to the Administrative Agent.
“Domestic Loan Party” means a Loan Party that is not a Foreign Subsidiary.
“Domestic Subsidiary” means each present and future Subsidiary of the Company that is not a Foreign Subsidiary.
“Dutch Collateral Agreements” means the collateral agreements governed by Dutch law set forth on Schedule 1.1(b) hereof, each dated as of the Closing Date between each Loan Party from time to time party thereto and the Collateral Agent.
“Dutch Collateral Documents” means each of the Dutch Collateral Agreements, and each other security agreement, pledge, mortgage or other instrument or document, as applicable, governed by Dutch law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Dutch Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Dutch Issuer” means Diebold Nixdorf Dutch Holding B.V.
“Dutch Loan Party” means any Loan Party incorporated or otherwise organized under the laws of the Netherlands. “EBIT” means, for any period, the sum of:
(a)the Consolidated Net Income of the Company and its Subsidiaries for such period determined in conformity with GAAP
plus, each of the following to the extent not duplicative of amounts included in determining Consolidated Net Income:
(b)Taxes based on income, profits or capital for such period, including, without limitation, state franchise and similar Taxes and foreign withholding Taxes, and Interest Expense (without, however, giving effect to the proviso to the definition thereof), and any extraordinary or non-recurring losses and charges and any non-cash losses and non-cash charges and related tax effects in accordance with GAAP; plus
(c)[reserved]; plus
(d)(i) fees, costs and expenses incurred in connection with Acquisitions, (ii) non-recurring costs, charges and expenses relating to (x) the exercise of options and (y) stock issued by the target of an Acquisition, (iii) any fees, costs, expenses or charges related to any equity offering, Acquisition, Disposition or other Investment permitted hereunder, recapitalization or incurrence or amendments of Indebtedness permitted to be made under (or related to any refinancing hereof or amendment hereto) this Agreement (whether or not successful) and (iv) any costs or expenses incurred by the Company or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Company or Net Cash Proceeds of an issuance of Equity Interests of the Company; plus
(e)any loss realized as a result of the cumulative effect of a change in accounting principles; plus
(f)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Acquisition, Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed, or, so long as the Company has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); plus
(g)[reserved]; plus
(h)synergies and cost-savings of the Company and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives
(“Synergies”) and non-recurring costs, charges, accruals, reserves or expenses of the Company and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Acquisition, any Disposition by the Company or its Subsidiaries outside the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring
initiatives enacted after the date hereof (it being understood any such increases pursuant to this clause (h) related to an Acquisition or Disposition shall only be available subject to the consummation of the Acquisition or Disposition and not in contemplation thereof), in each case, that are set forth in a certificate of a Designated Financial Officer of the Company and that are factually supportable (in the good faith determination of the Company, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Company in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Acquisition or Disposition or the decision implement such restructuring initiative (calculated on a Pro Forma Basis and net of the amount of actual benefits realized during such period from such actions to the extent already included in consolidated net income for such period); provided that the aggregate amount added back in reliance on this clause (h) in any four-fiscal quarter period shall not exceed 10% of EBITDA for such four-fiscal quarter period (calculated before giving effect to any addbacks and adjustments in this clause (h));
minus, each of the following to the extent included in determining Consolidated Net Income (without duplication):
(j)the income (or loss) of any Person (other than a Subsidiary of the Company) in which any Person other than the Company or any of its Subsidiaries has a joint interest or a partnership interest or other ownership interest, except to the extent that any such income is actually paid to or otherwise received in cash by the Company or any of its Subsidiaries during such period, (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Company or is merged into or amalgamated or consolidated with the Company or any of its Subsidiaries or that Person’s assets are acquired by the Company or any of its Subsidiaries, except as provided in the definitions of “EBIT” and “Pro Forma Basis” herein, (iii) [reserved]; (iv) gains (or losses) from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of business of the Company and its Subsidiaries, and related tax effects in accordance with GAAP, (v) any other extraordinary or non-recurring gains or other income not from the continuing operations of the Company or its Subsidiaries, any non-cash gains for such period, and in each case, related tax effects in accordance with GAAP and (vi) the income of any Subsidiary of the Company (other than Subsidiaries which are not material in the aggregate as agreed upon between the Company and the Administrative Agent) to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary; minus
(k)[reserved]; minus
(l)without duplication, the aggregate amount of cash payments made during such period in respect of any non- cash accrual, reserve or other non-cash charge or expense accounted for in a prior period which were added to Consolidated Net Income to determine EBIT for such prior period and which do not otherwise reduce Consolidated Net Income for the current period; minus
(m)any gain realized as a result of the cumulative effect of a change in accounting principles. For the avoidance of doubt, the foregoing shall be calculated as set forth in Section 1.2.
“EBITDA” means, for any period, the sum of (a) EBIT for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period, all amounts attributable to depreciation expense and amortization expense (including amortization of intangibles, deferred financing fees and actuarial gains and losses related to pensions and other post-employment benefits, but excluding amortization of prepaid cash expenses that were paid in a prior period), in each case, determined in accordance with GAAP.
“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 clauses (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.
“EMU” means the European Economic and Monetary Union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.
“EMU Legislation” means the legislative measures of the European Union for the introduction of, changeover to or operation of the Euro in one or more member states of the European Union.
“English Collateral Agreements” means the collateral agreements governed by English law set forth on Schedule 1.1(b) hereof.
“English Collateral Documents” means (a) the English Collateral Agreements and (b) each other security agreement, charge, assignment by way of security, lien, pledge, debenture, hypothec, mortgage or other instrument or document, as applicable, governed by English law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each English Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“English Loan Party” means any Loan Party incorporated or otherwise organized under the laws of England and Wales. “Environmental Laws” means any and all applicable federal, state, provincial, territorial, municipal, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits,
concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (a) pollution or the protection of the environment, (b) the effect of the environment or Hazardous Substances on human health and safety, (c) emissions, discharges or releases of Hazardous Substances into the environment, including surface water, ground water or land, or (d) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Substances or the clean-up, investigation or other remediation thereof.
“Environmental Liability” means any liability contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), resulting from or based upon (a) any Environmental Law, (b) any Hazardous Substances, including exposure to or Releases of Hazardous Substances or (c) any contract, agreement or other legally binding arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means shares of the capital stock, partnership interests, membership interest in a limited liability company, beneficial interests in a trust or other equity interests or any warrants, options or other rights to acquire such interests but excluding any debt securities convertible into such Equity Interests.
“Equivalent Amount” of any currency with respect to any amount of any other currency at any date means the equivalent in such currency of such amount of such other currency, calculated pursuant to Section 1.5.
“ERISA” means the Employee Retirement Income Security Act of l974, as amended from time to time, and any rule or regulation issued thereunder.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencement of such Interest Period.
“EURIBOR Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Company.
“Euro” or “€” means the single currency unit of the member states of the European Union that have the euro as its lawful currency in accordance with the EMU Legislation.
“Euro Term Commitment” means, with respect to each Term Lender, the commitment, if any, of such Term Lender to make Euro Term Loans hereunder, expressed as an amount representing the maximum principal amount of the Euro Term Loans to be made by such Term Lender hereunder, as such commitment may be reduced or increased from time to time pursuant to
Sections 2.4, 2.19, 13.1 or any other applicable provisions hereof. The initial amount of each Lender’s Euro Term Commitment is set forth on Schedule 1.1(a) under the caption “Euro Term Commitment” or, otherwise, in the Assignment and Assumption pursuant to which such Lender shall have assumed its Euro Term Commitment, as the case may be.
“Euro Term Facility” means the Euro Term Commitments and the extensions of credit made thereunder. “Euro Term Lender” means a Lender with a Euro Term Commitment or an outstanding Euro Term Loan.
“Euro Term Loan” means the loans made (or deemed made) by the Lenders to the Company pursuant to Section 2.1(a)(ii).
“Exchange Rate” means on any day the rate at which such other currency may be exchanged into U.S. Dollars at the time of determination on such day on the Bloomberg WCR Page for such currency. If such rate does not appear on any Bloomberg WCR Page, the Exchange Rate shall be determined by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Administrative Agent and the Company or, in the absence of such an agreement, the Administrative Agent, after consultation with the Company, may use any reasonable method it deems in good faith appropriate to determine such rate, and such determination shall be presumed correct absent manifest error.
“Excess Stub Notes” has the meaning assigned to such term in Section 6.32.
“Excluded Assets” means (i) any fee-owned real property located outside the United States having a fair market value equal to or less than $10,000,000, (ii) any fee-owned real property located in the United States having a fair market value equal to or less than $10,000,000, (iii) leasehold interests (it being understood that there shall be no requirement to obtain leasehold mortgages/deeds of trusts, landlord waivers, estoppels, collateral access letters or similar third-party agreements or consents),
(iv) those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti-assignment provisions of the UCC, the PPSA or other applicable law), or to the extent that such security interests would result in material adverse tax consequences to the Company and its Subsidiaries, taken as a whole, as reasonably determined in good faith by the Company, (v) those assets as to which the Administrative Agent and the Company reasonably determine that the costs of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (vi) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (vii) to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Administrative Agent, equity interests in any person other than Wholly Owned Subsidiaries, (viii) margin stock,
(ix) letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that Company and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below $2,000,000 (except to the extent perfection can be achieved by the filing of a UCC or PPSA financing statement), (x) any governmental licenses or state, provincial, territorial or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the UCC or PPSA and excluding the proceeds and receivables thereof), (xi) any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Company or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or PPSA), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or PPSA notwithstanding such prohibition, but in each case subject to the terms of the Collateral and Guarantee Requirements (other than to the extent no additional action needs to be taken with respect to any such assets to create or perfect a security interest in any such assets), (xii) the Specified Intercompany Claims and (xiii) any property excluded pursuant to the Agreed Security Principles. Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Loan Document to the contrary, any asset (other than the Paderborn Property) that does not constitute “Excluded Property” or “Excluded Assets”, as applicable under and as defined in the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing Term Loan Facility and/or the ABL Facility shall not constitute an “Excluded Asset” for purposes of this Agreement and the other Loan Documents.
“Excluded Subsidiaries” means (i) any Foreign Subsidiary (other than a Specified Foreign Subsidiary), (ii) any Domestic Subsidiary of a Foreign Subsidiary (other than a Specified Foreign Subsidiary), (iii) any Domestic Subsidiary substantially all of the assets of which are Capital Stock or Indebtedness of Excluded Subsidiaries under clause (i), (iv) any other Subsidiary excused from becoming a Loan Party pursuant to clause (a) of the last paragraph of the definition of the term “Domestic Collateral and Guarantee Requirement” or of the term “Canadian Collateral and Guarantee Requirement” or the terms of the Agreed Security Principles, (v) any non-Wholly Owned Subsidiary to the extent the provision of a guarantee or granting of a Lien thereby is restricted or prohibited pursuant to applicable local law or contractual requirements and (vi) Immaterial Subsidiaries.
“Excluded Taxes” means, with respect to any payment made by any Withholding Agent under any Loan Document, 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) any Tax attributable to such Recipient’s failure to comply with
Section 3.4(f)), (c) in the case of a Lender, any U.S. federal 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 (i) such Lender acquires such interest in the Loan or Commitment (other than pursuant to an assignment request by the Company under Section 3.5(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 3.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (d) any withholding Taxes imposed by FATCA,
(e) any Tax levied under the laws of the Netherlands to the extent such Tax becomes payable as a result of any Secured Party having a substantial interest (aanmerkelijk belang) in any Dutch Loan Party as laid down in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001), (f) any Taxes that is imposed in France on amounts paid by a Loan Party if such Taxes are imposed solely because this payment is made to (i) a Secured Party incorporated, domiciled, established or acting through a lending office situated in a Non-Cooperative Jurisdiction or (ii) an account opened in the name of or for the benefit of that Secured Party in a financial institution situated in a Non-Cooperative Jurisdiction and (g) any tax that arises due to the fact that the Loan is secured (directly or indirectly) by real estate located in Germany (inländische Grundstücke) or domestic rights treated as real property under German civil law (inländische Rechte, die den Vorschriften über Grundstücke unterliegen) within the meaning of
section 49 para. 1 no. 5 lit. c) aa) Income Tax Act (Einkommensteuergesetz) (including withholding taxes within the meaning of section 50 para. 7 Income Tax Act (Einkommensteuergesetz)).
“Existing Term Loan Facility” means that certain credit agreement, dated as of November 23, 2015, among the Company, the guarantors party thereto, JPMorgan Chase Bank, N.A., as administrative agent, and the lenders parties thereto from time to time, as amended on or about the Closing Date and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time.
“Existing Term Loan Facility Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the Existing Term Loan Facility, or any successor representative acting in such capacity.
“Existing Term Loan Facility Collateral Agent” means JPMorgan Chase Bank, N.A., in its capacity as the administrative agent under the Existing Term Loan Facility, or any successor representative acting in such capacity.
“Existing Term Loans” means the loans made to the Company pursuant to the Existing Term Loan Facility. “External Subsidiary” means a Subsidiary of the Company which is not a Loan Party.
“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 intergovernmental agreements entered into in connection therewith, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any current or future regulations or official interpretations of any of the foregoing.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions, as determined in such manner as shall be set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America. “Finance Lease Obligations” of a Person means the amount of the obligations of such Person to pay rent or other amounts
under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are, in conformity with GAAP, accounted for as a finance lease (rather than an operating lease) on the balance sheet of that Person, and, for purposes hereof and subject to Section 1.2, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004 (UK).
“First Lien Pari Passu Intercreditor Agreement” means that certain First Lien Pari Passu Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, Collateral Agent, the Superpriority Term Loan Facility Collateral Agent, the New Term Loan Facility Administrative Agent, the 2025 Euro Notes Collateral Agent, the 2025 Euro Notes Trustee, the 2025 U.S. Notes Collateral Agent, the 2025 U.S. Notes Trustee, the Existing Term Loan Facility Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Floating Rate” means, for any day, a rate per annum equal to the sum of (a) the Applicable Margin plus (b) the Alternate Base Rate for such day, in each case changing when and as the Alternate Base Rate changes.
“Floating Rate Loan” or “Floating Rate Advance” means a Loan which bears interest at the Floating Rate.
“Flood Insurance Regulations” means (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973 and (c) the National Flood Insurance Reform Act of 1994 (amending 42 USC 4001 et seq.).
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate or Adjusted EURIBOR Rate. For the avoidance of doubt the initial Floor for the Adjusted Term SOFR Rate is 1.5% and the initial floor for the Adjusted EURIBOR Rate is 0.50%.
“Foreign Excluded Assets” means any asset or undertaking not required to be charged or secured or not subject to any applicable Security Document pursuant to and in accordance with the terms of the Canadian Collateral and Guarantee Requirement and Agreed Security Principles, including, subject to Section 6.9(e), the Paderborn Property.
“Foreign Guarantee Agreement” means the Foreign Guarantee Agreement, dated as of the Closing Date and as further supplemented or modified from time to time, among the Foreign Loan Parties and the Administrative Agent in form and substance acceptable to the Administrative Agent.
“Foreign Intellectual Property” means any right, title or interest in or to any intellectual property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.
“Foreign Loan Documents” means the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents, the Foreign Guarantee Agreement and any other Loan Document which is not governed by the laws of the United States of America or any state or territory thereof.
“Foreign Loan Parties” means each Loan Party organized under the laws of a jurisdiction outside of the United States. “Foreign Plan” means each employee benefit plan (as defined under Section 3(3) of ERISA) that is not subject to the laws of
the United States and is maintained or contributed to by the Company or any Subsidiary or with respect to which the Company or
any Subsidiary has any liability.
“Foreign Plan Event” means, with respect to any Foreign Plan, (A) the failure to make or, if applicable, accrue in accordance with normal accounting practices, any employer or employee contributions required by applicable law or by the terms of such Foreign Plan; (B) the failure to register or loss of good standing with applicable regulatory authorities of any such Foreign Plan required to be registered; (C) the failure of any Foreign Plan to comply with any material provisions of applicable law and regulations or with the material terms of such Foreign Plan; or (D) the imposition of any liability on account of the complete or partial termination of any Foreign Plan or the complete or partial withdrawal of any participating employer therein.
“Foreign Subsidiary” means each Subsidiary organized under the laws of a jurisdiction outside of the United States. “French Collateral Agreements” means the collateral agreements governed by French law set forth on Schedule 1.1(b)
hereof.
“French Collateral Documents” means the French Collateral Agreements and each security agreement, pledge, mortgage, any type of security (sûreté réelle), transfer or assignment by way of security and fiducie-sûreté or other instrument or document, as applicable, governed by French law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each French Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“French Civil Code” means the French Code civil.
“French Commercial Code” means the French Code de commerce.
“French Loan Party” means Diebold Nixdorf, a French société par actions simplifiée, with a share capital of
€12,820,080.00, with its registered office at 3, rue Paul Dautier, 6, avenue Morane Saulnier, 78140 Vélizy-Villacoublay, registered at the commercial registry of Versailles under number 410 383 533 R.C.S. Versailles, or any Loan Party incorporated or otherwise organized under the laws of France.
“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time. “German Collateral Agreements” means the Collateral Agreements governed by German law set forth on Schedule 1.1(b)
hereof.
“German Collateral Documents” means each of the German Collateral Agreements, and each other security agreement or other instrument or document, as applicable, governed by German law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each German Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“German Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Germany.
“Governmental Authority” means any nation or government, any state, province, territory or other political subdivision thereof and any entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government.
“Guarantee Obligation” means as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor,
(iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith.
“Guarantor” means (a) with respect to the Obligations of the Company, each of its present and future Subsidiaries executing a Guaranty as a guarantor at any time and (b) with respect to the Obligations of any Guarantor, the Company and each of its present and future Subsidiaries that executes a Guaranty as a guarantor at any time.
“Guaranty” means the Domestic Guarantee Agreement and the Foreign Guarantee Agreement, including any joinder, amendment, modification, renewal or replacement thereof.
“Hazardous Substances” means any material or substance: (1) which is or becomes defined as a hazardous substance, pollutant, or contaminant, pursuant to the Comprehensive Environmental Response Compensation and Liability Act
(“CERCLA”) (42 USC §9601 et. seq.) as amended and regulations promulgated under it; (2) containing gasoline, oil, diesel fuel or other petroleum products; (3) which is or becomes defined as hazardous waste pursuant to the Resource Conservation and
Recovery Act (“RCRA”) (42 USC §6901 et. seq.) as amended and regulations promulgated under it; (4) containing polychlorinated biphenyls (PCBs) or per- and polyfluoroalkyl substances; (5) containing asbestos; (6) which is radioactive; (7) the presence of which requires investigation or remediation under any Environmental Law or; (8) which is or becomes defined or identified as a hazardous waste, hazardous substance, hazardous or toxic chemical, pollutant, contaminant, or biologically hazardous substance under any Environmental Law.
“IFRS” means international accounting standards as promulgated by the International Accounting Standards Board. “Immaterial Subsidiary” means each Subsidiary of the Company now existing or hereafter acquired or formed and each
successor thereto, which accounts for not more than (a) 5.0% of the consolidated gross revenues (after intercompany
eliminations) of the Company and its Subsidiaries or (b) 5.0% of the Total Assets (after intercompany eliminations) of the Company and its Subsidiaries, in each case, as of the last day of the most recently completed fiscal quarter of the Company for which financial statements were delivered pursuant to Section 6.1(i) or (ii); provided that if the Subsidiaries that constitute Immaterial Subsidiaries pursuant to the preceding portion of this definition account for, in the aggregate, more than 10.0% of such consolidated gross revenues or more than 10.0% of the Total Assets, each as described in the preceding portion of this definition, then the term “Immaterial Subsidiary” shall not include each such Subsidiary (starting with the Subsidiary that
accounts for the most consolidated gross revenues or Total Assets and then in descending order) necessary to account for at least 90% of the consolidated gross revenues and 90% of the Total Assets, each as described in clause (a) above.
“Indebtedness” of a Person means, without duplication, such Person’s (a) obligations for borrowed money or similar obligations, (b) obligations representing the deferred purchase price of Property or services (other than accounts payable and/or accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case arising in the ordinary course of such Person’s business payable in accordance with customary practices), (c) obligations which are evidenced by notes, acceptances, or other instruments, to the extent of the amounts actually borrowed, due, payable or drawn, as the case may be, (d) Finance Lease Obligations, (e) all reimbursement obligations in respect of Letters of Credit (other than commercial Letters of Credit referenced in clause (b) , whether drawn or undrawn, contingent or otherwise, (f) any other obligation for borrowed money or similar financial accommodation which in accordance with GAAP would be shown as a liability on the consolidated balance sheet of such Person, (g) Off-Balance Sheet Liabilities, (h) Guarantee Obligations with respect to any of the foregoing and (i) all obligations of the kind referred to in the foregoing clauses secured by (or for which the holder of such obligation has an existing
right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, provided that, if such Person has not assumed such obligations, then the amount of Indebtedness of such Person for purposes of this clause (i) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations.
“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) Other Taxes.
“Indemnitee” is defined in Section 10.6(b).
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in Similar Businesses of nationally recognized standing that is, in the good faith judgment of the Company, qualified to perform the task for which it has been engaged.
“Ineligible Person” means (a) a natural person or (b) other than as set forth and in accordance with Section 13.1(b)(iii), the Company or any of its Subsidiaries or other controlled Affiliates.
“Intercreditor Agreements” means, collectively, the ABL Intercreditor Agreement, the First Lien Pari Passu Intercreditor Agreement, the Junior Lien Pari Passu Intercreditor Agreement, the Non-Released Multi Lien Intercreditor Agreement and the Multi Lien Intercreditor Agreement.
“Interest Expense” means, with respect to any period, the aggregate of all interest expense reported by the Company and its Subsidiaries in accordance with GAAP during such period, net of any cash interest income received by the Company and its Subsidiaries during such period from Investments. As used in this definition, the term “interest” shall include, without limitation, all interest, fees and costs payable with respect to the obligations under this Agreement (other than fees and costs which may be capitalized as transaction costs in accordance with GAAP), any discount in respect of sales of accounts receivable and/or related contract rights and the interest portion of Finance Lease Obligations during such period, all as determined in accordance with GAAP.
“Interest Period” means with respect to any Term Benchmark Advance, the period commencing on the date of such Advance and ending on the numerically corresponding day in the calendar month that is one, three or six months thereafter (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Commitment), as the Company may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day, (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period and (iii) no tenor that has been removed from this definition pursuant to Section 2.20(e) shall be available for specification in such Borrowing Notice or Conversion/Continuation Notice. For purposes hereof, the date of an Advance initially shall be the date on which such Advance is made.
“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable and/or accrued expenses arising in the ordinary course of business payable in accordance with customary practices and loans to employees in the ordinary course of business), Acquisition or equity investment or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person.
“IRS” means the United States Internal Revenue Service.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, supplemented and implemented from time to time.
“Italian Civil Code” means the Italian civil code, enacted by Royal Decree No. 262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Collateral Agreements” means the collateral agreements governed by Italian law set forth on Schedule 1.1(b) hereof. “Italian Collateral Documents” means the Italian Collateral Agreements and each security agreement, pledge, debenture,
hypothec, mortgage, consent or other instrument or document, as applicable, governed by Italian law in connection with this
Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Italian Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Italian Corporate Crisis and Insolvency Code” means Legislative Decree No. 14 of 12 January 2019, aimed at implementing Law No. 155 of 19 October 2017, as amended and supplemented from time to time.
“Italian Guarantor” means a Guarantor incorporated under the laws of Italy.
“Italian Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Italy.
“Judgment Currency” is defined in Section 16.6.
“Junior Debt” means (i) [reserved], (ii) [reserved], (iii) the New 2L Notes, (iv) any Indebtedness (other than the ABL Facility) that is secured by a Lien on any Collateral ranking junior to the Lien on the Collateral securing any of the Obligations,
(v) any unsecured Indebtedness, (vi) Subordinated Indebtedness, (vii) the Existing Term Loan Facility, and (viii) any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) any of the foregoing.
“Junior Lien Pari Passu Intercreditor Agreement” means that certain Junior Lien Pari Passu Intercreditor Agreement, dated as of the Closing Date, by and among the each of the 2025 Notes Collateral Agents, the Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Latest Maturity Date” means with respect to the issuance or incurrence of any Indebtedness or Equity Interests, the latest maturity date applicable to any Credit Facility that is outstanding hereunder as determined on the date such Indebtedness is issued or incurred or such Equity Interests are issued.
“Lenders” means the lending institutions listed on the signature pages of this Agreement or otherwise party hereto as a Lender from time to time, and their respective successors and, to the extent permitted by Section 13.1, assigns.
“Lending Installation” means, with respect to a Lender, any office, branch, subsidiary or Affiliate of such Lender. “Letter of Credit” of a Person means a letter of credit, bankers’ acceptance or similar instrument which is issued upon the
application of such Person or upon which such Person is an account party or for which such Person is in any way liable.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Liquidity” means pro forma liquidity tested on a trailing 10-day average and based on global cash or Cash Equivalents of the Company and its Subsidiaries, and unused availability under the ABL Facility, but without deduction for any amounts used to pay, prepay, repay, satisfy, purchase, exchange, redeem, retire, acquire, defease, cancel or terminate the Excess Stub Notes (including any payment of interest, fees or principal on account of such Excess Stub Notes).
“Loan Documents” means this Agreement, the Notes, any Guaranties, the Security Documents, and the Intercreditor Agreements (including in each case, any amendments thereto).
“Loan Party” means the Company or any Guarantor.
“Margin Stock” means “margin stock” as defined in Regulations U or X or “marginable OTC stock” or “foreign margin stock” within the meaning of Regulation T.
“Material Adverse Effect” means a material adverse effect on (i) the business, Property, operations or condition (financial or otherwise) of the Company and its Subsidiaries taken as a whole, (ii) the ability of the Loan Parties, taken as a whole, to pay the Obligations under the Loan Documents, or (iii) the validity or enforceability against any of the Loan Parties of any of the Loan Documents or the rights or remedies of the Administrative Agent, Collateral Agent or the Lenders thereunder.
“Maximum Rate” is defined in Section 10.12.
“Moody’s” means Moody’s Investors Service, Inc., and any successor-in-interest thereto.
“Mortgages” means each of the mortgages, land charges, deeds of hypothec, debentures and deeds of trust made by any Loan Party in favor of, or for the benefit of, the Collateral Agent for the benefit of the Lenders in form and substance reasonably acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Mortgaged Property” means any real property and the improvements thereon owned in fee by a Loan Party with respect to which a Mortgage is granted pursuant to Section 4.01 (if any) or Section 6.9 (if any).
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA to which the Company or any member of the Controlled Group has an obligation to contribute or with respect to which the Company or any member of the Controlled Group has any liability.
“Multi Lien Intercreditor Agreement” means that certain Multi Lien Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent, the 2025 Notes Trustees, each of the 2025 Notes Collateral Agents, the Superpriority Term Loan Facility Administrative Agent, the Superpriority Term Loan Facility Collateral Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent and each additional agent from time to time party thereto, and
acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Net Cash Proceeds” means (a) in connection with any Asset Sale Prepayment Event or any Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents (including any such proceeds received by way of deferred payment of principal pursuant to a note or installment receivable or purchase price adjustment receivable or otherwise and net proceeds from the sale or other disposition of any securities or other assets received as consideration, but only as and when received, but excluding any other consideration received in the form of assumption by the acquiring Person of Indebtedness or other obligations secured by the properties or assets that are the subject of such Asset Sale Prepayment Event or Recovery Event (in each case, other than Junior Debt) or received in the form of any other non-cash asset that is not converted to cash within 180 days), net of (i) all legal, accounting, investment banking, title and recording tax expenses, commissions and other fees and expenses incurred, and all federal, state, provincial, territorial, foreign and local taxes required to be paid or reasonably expected to be paid or accrued as a liability under GAAP (after taking into account any tax credits or deductions that are available or reasonably expected to be available and any tax sharing agreements), as a consequence of such Asset Sale Prepayment Event or Recovery Event and (ii) amounts required to be applied to the repayment of Indebtedness (A) that is secured by any assets (excluding Collateral) to the extent of the value of such assets being sold subject to such event and only to the extent such assets are held and sold (as applicable) by an External Subsidiary or (B) to the extent required by (x) solely with respect to ABL Priority Collateral, the terms of the ABL Facility, (y) any External Subsidiary Indebtedness and/or (z) applicable law and (b) in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of
attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts or placement agents’ fees, listing fees, discounts or commissions, brokerage, consultant and other fees and charges and commissions and other customary fees and expenses actually incurred in connection therewith.
“New 2L Notes” means the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 issued pursuant to the New 2L Notes Indenture.
“New 2L Notes Collateral Agent” means GLAS Americas LLC.
“New 2L Notes Indenture” means that certain indenture, dated as of the Closing Date, among the Company, the Guarantors party thereto and the New 2L Notes Trustee and the New 2L Notes Collateral Agent, as amended or supplemented from time to time, relating to the New 2L Notes.
“New 2L Notes Trustee” means U.S. Bank Trust Company National Association. “New Term Loan Paydown” has the meaning assigned to such term in Section 2.6.5(c).
“Non-Cooperative Jurisdiction” means a non-cooperative state or territory (État ou territoire non coopératif) as set out in the lists referred to in Article 238-0 A of the French tax code, as such lists may be amended from time to time.
“Non-Released Multi Lien Intercreditor Agreement” means that certain Non-Released Multi Lien Intercreditor Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Collateral Agent, the 2025 Notes Trustees, each of the 2025 Notes Collateral Agents, the Superpriority Term Loan Facility Administrative Agent, the Superpriority Term Loan Facility Collateral Agent, the Existing Term Loan Facility Administrative Agent, the Existing Term Loan Facility Collateral Agent, the New 2L Notes Trustee, the New 2L Notes Collateral Agent and each additional agent from time to time party thereto, and acknowledged by the grantors from time to time party thereto, as may be amended, restated, supplemented or replaced, in whole or in part, from time to time.
“Non-Spanish Lender” means a Lender resident for tax purposes outside Spain and which is: (a) tax resident in a member state of the European Union (other than Spain) or the European Economic Area, acting directly or through a permanent establishment located in another member state of the European Union or the European Economic Area, provided that it does not
(i) obtain income through a territory classified as a non-cooperative jurisdiction (in the terms of the First Additional Provision of Spanish Law 36/2006, of 29 November, on prevention measures and actions against tax fraud, as amended and restated from time to time) or through a member state of the European Economic Area not having an effective exchange of tax information agreement with Spain in force; nor (ii) act through a permanent establishment located in Spain or outside the European Union or the European Economic Area with which that Lender’s income is effectively connected; or (b) a Spanish Treaty Lender.
“Non-U.S. Lender” means a Lender that is not a U.S. Person. “Notes” is defined in Section 2.2.6.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source. “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the
Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a
federal funds broker of recognized standing selected by it; provided that if the NYFRB Rate as so determined would be less than 0%, such rate shall be deemed to be 0% for the purposes of this Agreement.
“Obligations” means collectively, the unpaid principal of and interest on the Loans (including, without duplication, the Transaction Premium), and all other obligations and liabilities of the Company and each Guarantor to the Administrative Agent, the Collateral Agent or the Lenders under this Agreement and the other Loan Documents (including, without limitation, interest accruing at the then applicable rate provided in this Agreement or any other applicable Loan Document after the maturity of the Loans and interest accruing at the then applicable rate provided in this Agreement or any other applicable Loan Document after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Company or any Guarantor, as the case may be, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding, and including under the Parallel Debt pursuant to Section 17.1), whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, the other Loan Documents or any other document made, delivered or given in connection therewith, in each case whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses or otherwise (including, without limitation, all reasonable fees and disbursements of counsel to the Administrative Agent or to the Lenders that are required to be paid by the Company or any Guarantor pursuant to the terms of this Agreement or any other Loan Document).
“Off-Balance Sheet Liability” of a Person means (i) any obligation under a Sale and Leaseback Transaction which is not a Finance Lease Obligation, (ii) any so-called “synthetic lease” or “tax ownership operating lease” transaction entered into by such Person, (iii) any factoring or similar sale of accounts receivable and related rights to the extent recourse to the Company or any of its Subsidiaries, or (iv) any other transaction (excluding operating leases for purposes of this clause (iv)) which is the functional equivalent of or takes the place of borrowing (in the case of transactions described in, or equivalent to those described in clause
(iii) above, solely to the extent recourse to the Company or any of its Subsidiaries) but which does not constitute a liability on the balance sheet of such Person; in all of the foregoing cases, notwithstanding anything herein to the contrary, the outstanding amount of any Off-Balance Sheet Liability shall be calculated based on the aggregate outstanding amount of obligations outstanding under the legal documents entered into as part of any such transaction on any date of determination that would be characterized as principal if such transaction were structured as a secured lending transaction, whether or not shown as a liability on a consolidated balance sheet of such Person, in a manner reasonably satisfactory to the Administrative Agent.
“Organizational Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws; (b) with respect to any limited liability company, the certificate or articles of association, formation or organization and operating agreement; 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 (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction).
“Other Applicable Asset Sale Indebtedness” has the meaning assigned to such term in Section 2.6.12.
“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Taxes (other than a connection arising from such Recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to, or enforced, any Loan Document, or sold or assigned an interest in any Loan or Loan Document).
“Other Taxes” means all present or future stamp, court, documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, or from the registration, 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 under Section 3.5(b)).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the NYFRB Rate and (b) with respect to any amount denominated in an Alternative Currency, an overnight rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
“Paderborn Property” means the fee-owned real property located at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany.
“Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary. “Pari Passu Lien Debt” means any Indebtedness that is secured by Liens on assets including all or part of the Collateral that
are pari passu in priority with the Liens on the Collateral securing the Term Loans. “Participant” is defined in Section 13.1(c).
“Participant Register” has the meaning assigned to such term in Section 13.1(c).
“Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, signed into law October 26, 2001.
“Payment Date” means the last Business Day of each March, June, September and December occurring after the Closing Date, beginning with March 31, 2023.
“PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.
“Pensions Regulator” means the body corporate called the Pensions Regulator established under Part I of the Pensions Act 2004 (UK).
“Permitted Amendment” means an amendment to this Agreement and the other Loan Documents, effected in connection with a Loan Modification Offer pursuant to Section 2.22, providing for an extension of the maturity date and/or amortization applicable to the Loans and/or Commitments of the Accepting Lenders of a relevant Class and that, in connection therewith, may also provide for (a)(i) a change in the Applicable Margin with respect to the Loans and/or Commitments of the Accepting Lenders subject to such Permitted Amendment and/or (ii) a change in the fees payable to, or the inclusion of new fees to be payable to, the Accepting Lenders in respect of such Loans and/or Commitments, (b) changes to any prepayment premiums with respect to the applicable Loans and Commitments of a relevant Class, (c) such amendments to this Agreement and the other Loan Documents as shall be appropriate, in the reasonable judgment of the Administrative Agent, to provide the rights and benefits of this Agreement and other Loan Documents to each new “Class” of loans and/or commitments resulting therefrom and (d) additional amendments to the terms of this Agreement applicable to the applicable Loans and/or Commitments of the Accepting Lenders that are (i) less favorable to such Accepting Lenders than the terms of this Agreement immediately prior to giving effect to such Permitted Amendment or (ii) no more restrictive, when taken as a whole, than those under this Agreement benefiting the Class of Loans subject thereto as in effect immediately prior to giving effect to such Permitted Amendment (except for covenants or other provisions applicable only to periods after the then latest final maturity date of any Loans or Commitments under this Agreement) and that, in each case of clauses (d)(i) and (ii), are reasonably acceptable to the Administrative Agent.
“Permitted Encumbrances” means:
(a)Liens imposed by law or any Governmental Authority for taxes, assessments or governmental charges or levies that are not yet overdue for a period of more than 45 days or are being contested in good faith by appropriate proceedings and with respect to which reserves have been set aside in accordance with GAAP;
(b)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in good faith by appropriate proceedings and with respect to which reserves have been set aside in accordance with GAAP;
(c)pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security or employment laws or regulations;
(d)deposits to secure the performance of bids, trade contracts, tenders, government contracts, leases, statutory obligations, surety, stay, custom and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e)judgment liens in respect of judgments that do not constitute a Default under Section 7.9 or that secure appeal or surety bonds related to such judgments;
(f)easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company or any Subsidiary;
(g)easements, zoning restrictions, rights-of-way, use restrictions, encroachments, protrusions, minor defects or irregularities in title, reservations (including reservations in any original grant from any government of any water or mineral rights or interests therein) and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of the Company and its Subsidiaries, taken as a whole;
(h)Liens in favor of payor banks having a right of setoff, revocation, refund or chargeback with respect of money or instruments of the Company or any Subsidiary on deposit with or in possession of such bank;
(i)Liens granted by (1) a Loan Party to another Loan Party, (2) a Subsidiary that is not a Loan Party to a Loan Party and (3) a Subsidiary that is not a Loan Party to another Subsidiary that is not a Loan Party; provided that, prior to the date on which the Existing Term Loans are no longer outstanding, this paragraph (i) shall not permit Liens granted
by a Foreign Loan Party or any Subsidiary of a Foreign Loan Party to the Company or a Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose;
(j)for the avoidance of doubt, other Liens (not securing Indebtedness) incidental to the conduct of the business of the Company or any of its Subsidiaries, as the case may be, or the ownership of their assets which do not individually or in the aggregate materially adversely affect the value of the Company or materially impair the operation of the business of the Company or its Subsidiaries;
(k)Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(l)leases, subleases, licenses or sublicenses granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of the Company or any Subsidiaries and do not secure any Indebtedness;
(m)deposits in the ordinary course of business to secure liability to insurance carriers;
(n)options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and the like permitted to be made under this Agreement;
(o)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by the Company or any of its Subsidiaries in the ordinary course of business of the Company or such Subsidiary;
(p)rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial institutions (i) in relation to the establishment, maintenance or administration of deposit accounts, securities accounts or arrangements relating to a cash management agreement or Swap Agreement, (ii) in relation to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Company or any Subsidiary or (iii) in relation to the right of setoff, revocation, refund or chargeback of a collecting bank with respect to money or instruments in the possession of such bank;
(q)Liens in favor of customs and revenues authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; and
(r)precautionary financing statement filings in connection with operating leases.
provided that, in any event, the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness for borrowed money.
“Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the original principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon, any committed or undrawn amounts and underwriting discounts, defeasance costs, fees, commissions and expenses, associated with such Permitted Refinancing Indebtedness), (b) the final maturity date and weighted average life of such Permitted Refinancing Indebtedness is no earlier than the final maturity date and then remaining weighted average life of the Indebtedness being Refinanced, (c) if the original Indebtedness being Refinanced is by its terms subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole, (d) no Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Indebtedness being Refinanced, (e) if the Indebtedness being Refinanced is (or would have been required to be) secured (whether senior, equally and ratably with, or junior to, the Obligations or otherwise), such Permitted Refinancing Indebtedness may be secured by a Lien on the same property that secures the Indebtedness that is being Refinanced on terms no less favorable (including as to priority of such Lien), taken as a whole, to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced, and to the extent the Obligations are secured by such property, shall be subject to an applicable Intercreditor Agreement in form and substance substantially the same as the Intercreditor Agreement to which the Indebtedness being Refinanced is subject or reasonably acceptable to the Administrative Agent and the Collateral Agent (acting at the direction of the Required Lenders) and (f) if the Indebtedness being Refinanced is unsecured, such Permitted Refinancing Indebtedness shall be unsecured.
“Person” means any natural person, corporation, firm, joint venture, limited liability company, unlimited liability company, partnership, association, enterprise, company or other entity or organization, or any government or political subdivision or any agency, department or instrumentality thereof.
“Plan” means an employee pension benefit plan (as defined in Section 3(2) of ERISA) which is covered by Title IV of ERISA or subject to the minimum funding standards under Section 412 or 430 of the Code or Section 302 of ERISA and as to which the Company or any member of the Controlled Group has any obligation to contribute or with respect to which the Company or any member of the controlled Group has any liability.
“Polish Collateral Agreements” means the collateral agreements governed by Polish law set forth on Schedule 1.1(b) hereof. “Polish Collateral Documents” means the Polish Collateral Agreements and each mortgage (hipoteka), assignment (cesja),
transfer of title by way of security (przewłaszczenie na zabezpieczenie), pledge (zastawy), suretyship (poręczenie), guarantee (gwarancja), letter of credit (akredytywa), promissory note (weksel własny), bill of exchange (weksel trasowany), right of set-off (prawo potrącenia), title retention (prawo zatrzymania), right of first refusal (prawo pierwokupu, prawo pierwszeństwa), power of attorney by way of security (pełnomocnictwo na zabezpieczenie), accession to debt (przystąpienie do długu), submission to execution (poddanie się egzekucji) or any other agreement, security interest, encumbrance or arrangement having the effect of security or granting a security or giving security or preferential ranking to a creditor, as applicable, governed by Polish law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Polish Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Polish Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Poland. “Pounds Sterling” or “£” means the lawful currency of the United Kingdom.
“PPSA” means the Personal Property Security Act (Ontario), as amended from time to time (or any successor statute)
including the regulations and Minister’s orders thereto; provided that, if validity, perfection or the effect of perfection or non- perfection or opposability or the priority of any Lien created hereunder on the Collateral is governed by the personal (movable) property security legislation or other applicable legislation with respect to personal (movable) property security in effect in a jurisdiction other than Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including, without limitation, the Civil Code of Quebec) in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such validity, perfection, effect of perfection or non-perfection or opposability or priority.
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.
“Pro Forma Basis” means, for purposes of calculating compliance of any transaction with any provision hereof which refers to a Pro Forma Basis, that the transaction in question (including any related Acquisition, or other Investment and, in each case, payment of consideration therefor) shall be deemed to have occurred as of the first day of the most recent period of four consecutive fiscal quarters of the Company for which financial statements are required to have been delivered pursuant to Section 6.1(i) or (ii) or, if such calculation is made prior to the first delivery of such financial statements, as of the first day of the period of four consecutive fiscal quarters ending on September 30, 2015. In connection with any calculation of the Total Net Leverage Ratio, upon giving effect to a transaction on a “Pro Forma Basis”, (i) any Indebtedness incurred, repaid, repurchased or redeemed by the Company or any of its Subsidiaries in connection with such transaction (or any other transaction which occurred during the relevant four fiscal quarter period or during the period from the last day of such period to and including the date of determination) shall be deemed to have been incurred or repaid, as the case may be, as of the first day of the relevant four fiscal quarter period, (ii) if such Indebtedness has a floating or formula rate, then the rate of interest for such Indebtedness for the applicable period for purposes of the calculations contemplated by this definition shall be determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of such calculations (giving consideration to any applicable rate “floor”), (iii) in the case of any determination of the permissibility of the incurrence of Indebtedness, if such Indebtedness is revolving in nature, a borrowing of the maximum amount of loans available shall be assumed, (iv) in the case of any determination of the permissibility of the incurrence of Indebtedness, the cash proceeds of all such Indebtedness shall be disregarded in calculating the Total Net Leverage Ratio, as applicable, (v) income statement items (whether positive or negative) attributable to all property acquired in such transaction or to the Investment comprising such transaction, as applicable, shall be included as if such transaction has occurred as of the first day of the relevant four-fiscal-quarter period and (vi) without
duplication of subclauses (g), (h) or (i) of the definition of “EBIT”, such calculation shall give effect to Synergies and Costs of Synergies resulting from or relating to the transaction in question and projected by the Company in good faith to be realized by the Company and its Subsidiaries subject, in any calculation of pro forma EBIT or EBITDA, to the applicable limitations on such Synergies and Costs of Synergies set forth in the definition of “EBIT”.
“Pro Rata Share” means, for each Lender, the ratio of such Lender’s Term Loans to the aggregate amount of all outstanding Term Loans.
“Property” of a Person means any and all property, whether real, personal, movable, immovable, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12
U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 17.3.
“Recipient” means, as applicable, (a) the Administrative Agent, (b) the Collateral Agent and (c) any Lender. “Recovery Event” means any settlement of or payment in respect of any property or casualty insurance claim or any
condemnation proceeding relating to any Property of the Company or any Subsidiary, in an amount that if constituting a
Disposition of such Property would have constituted an Asset Sale Prepayment Event.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (New York time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting or (3) if such Benchmark is not the Term SOFR Rate or the EURIBOR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinance” is defined in the definition of “Permitted Refinancing Indebtedness”. “Register” has the meaning assigned to such term in Section 13.1(b)(v).
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor thereto or other regulation or official interpretation of said Board of Governors relating to reserve requirements applicable to member banks of the Federal Reserve System.
“Regulation T” means Regulation T of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors.
“Regulation U” means Regulation U of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors.
“Regulation X” means Regulation X of the Board of Governors of the Federal Reserve System as from time to time in effect and any successor or other regulation or official interpretation of said Board of Governors.
“Reinvestment Deferred Amount” means with respect to any Reinvestment Event, the aggregate Net Cash Proceeds received by the Company or any Subsidiary in connection therewith that are not applied to prepay the Term Loans pursuant to
Section 2.6.5 as a result of the Company’s election to reinvest all or a portion of the Net Cash Proceeds.
“Reinvestment Event” means any Asset Sale Prepayment Event or Recovery Event in respect of which the Company elects to reinvest a portion of the Net Cash Proceeds pursuant to Section 2.6.5.
“Reinvestment Prepayment Amount” means with respect to any Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant Reinvestment Prepayment Date to maintain, develop, construct, improve, upgrade or repair assets (other than current assets) useful in the Company’s or its Subsidiaries’ business or to replace the assets subject to such applicable Asset Sale Prepayment Event or Recovery Event.
“Reinvestment Prepayment Date” means with respect to any Reinvestment Event, the earlier of (a) the date occurring 90 days after such Reinvestment Event and (b) the date on which the Company shall have determined not to, or shall have otherwise ceased to, maintain, develop, construct, improve, upgrade or repair assets (other than current assets) useful in the Company’s or
its Subsidiaries’ business with all or any portion of the relevant Reinvestment Deferred Amount or to replace the assets subject to such Asset Sale Prepayment Event or Recovery Event with all or any portion of the relevant Reinvestment Deferred Amount.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors, representatives and controlling persons of such Person and such Person’s Affiliates.
“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).
“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of
Term Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto and (iii) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof..
“Relevant Rate” means (i) with respect to any Term Benchmark Advance denominated in Dollars, the Adjusted Term SOFR Rate or (ii) with respect to any Term Benchmark Advance denominated in Euros, the Adjusted EURIBOR Rate.
“Relevant Screen Rate” means (i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Term SOFR Reference Rate or (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR Screen Rate, as applicable.
“Remedial Action” means an action to investigate, remediate or otherwise address a Release of Hazardous Substances or other violation of Environmental Laws.
“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30-day notice period has been waived.
“Required Accounts” means, (A) all deposit accounts or securities accounts of the Domestic Loan Parties and the Canadian Loan Parties, other than (i) accounts having a de minimis balance; provided that the aggregate balance in all accounts excluded by this de minimis threshold shall not exceed $2,500,000 at any time, (ii) payroll, disbursement and other fiduciary accounts,
(iii) zero balance disbursement account, (iv) other trust, escrow, customs and fiduciary accounts, (v) cash collateral accounts solely holding cash collateral upon which Liens permitted by Section 6.16 exist and (vi) tax accounts, including, without limitation, sales tax accounts and (B) all deposit accounts and securities accounts that are subject to control agreements in favor of the ABL Collateral Agent.
“Required Lenders” means Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 50% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders.
“Requirement of Law” means as to any Person, the certificate of incorporation and by-laws or other organizational or governing documents of such Person, and any law, treaty, rule or regulation or determination of an arbitrator or a court or other Governmental Authority, in each case applicable to or binding upon such Person or any of its Property or to which such Person or any of its Property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Indebtedness” is defined in Section 6.26.
“Revolver Exchange” has the meaning assigned to such term in the Transaction Support Agreement. “S&P” means Standard & Poor’s Financial Services, LLC and any successor-in-interest thereto.
“Sale and Leaseback Transaction” means any sale or other transfer of property by any Person with the intent to lease or use such Property as lessee or in any other similar capacity (but excluding, for the avoidance of doubt, any sale and leaseback of inventory or equipment that is subleased or otherwise leased directly or indirectly to any customer of the Company or a Subsidiary).
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State or (b) the United Nations Security Council, the European Union, the Government of
Canada or His Majesty’s Treasury of the United Kingdom.
“Sanctioned Country” means, at any time, a country or territory which is the subject or target of any Sanctions (as of the Closing Date, Crimea, the so-called Donetsk People’s Republic, so-called Luhansk People’s Republic, and non-government controlled areas of the Kherson and Zaporizhzhia regions of Ukraine, Cuba (other than with respect to a Canadian Loan Party), Iran, North Korea, and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, or by the United Nations Security Council, the European Union or any EU member state, the Government of Canada or His Majesty’s Treasury of the United Kingdom, (b) any Person located, ordinarily resident in, or organized under the laws of, a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject or target of Sanctions.
“SEC” means the Securities and Exchange Commission or any governmental authority succeeding to any or all of the functions of the Securities and Exchange Commission.
“Section” means a numbered section of this Agreement, unless another document is specifically referenced.
“Secured Parties” means the Administrative Agent, the Collateral Agent, the Lenders and each other Person who is owed any portion of the Obligations.
“Security Agreement” means the New York law governed security agreement among the Company, the other Guarantors and the Collateral Agent in form and substance reasonably satisfactory to the Collateral Agent.
“Security Documents” means the Security Agreement, each Mortgage, the Canadian Collateral Agreement, the Dutch Collateral Documents, the English Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents and each other security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, executed and delivered by the Company and/or the other Guarantors in connection with this Agreement, including the Collateral and Guarantee Requirements, Sections 2.18, 6.9 and 6.12 to secure any of the Obligations.
“Significant Subsidiary” means each present or future subsidiary of the Company which would constitute a “significant subsidiary” within the meaning of Rule 1-02 of Regulation S-X as currently in effect promulgated by the SEC.
“Similar Business” means any business similar in nature to any business conducted or proposed to be conducted by the Company and its Subsidiaries on the Closing Date or any business that is reasonably related, complementary, incidental or ancillary thereto or a reasonable extension, development or expansion of, the business conducted by the Company and its Subsidiaries on the Closing Date, in each case, as determined in good faith by the Company.
“SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator. “SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple SOFR”. “SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Spanish Civil Procedure Law” means Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil as amended or consolidated from time to time.
“Spanish Collateral Agreements” means the collateral agreements governed by Spanish law set forth on Schedule 1.1(b) hereof.
“Spanish Collateral Documents” means the Spanish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Spanish law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Spanish Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Spanish Companies Act” means Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital, as amended or consolidated from time to time.
“Spanish Insolvency Act” means Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal as amended or consolidated from time to time.
“Spanish Lender” means a Lender which is: (a) a Spanish financial entity as referred to in paragraph (c) of article 61 of the Spanish Corporate Income Tax Regulations approved by Spanish Royal Decree 634/2015, of 10 July 2015 (Reglamento del Impuesto sobre Sociedades aprobado por el Real Decreto 634/2015, de 10 de julio) as amended or restated; (b) a Spanish permanent establishment of a non-Spanish financial entity as referred to in the second paragraph of article 8.1 of the Spanish Non-Resident Income Tax Regulations approved by Spanish Royal Decree 1776/2004, of 30 July 2004 (Reglamento del
Impuesto sobre la Renta de no Residentes aprobado por el Real Decreto 1776/2004, de 30 de julio) as amended or restated; or (c) a securitization fund of those referred to in paragraph (k) of article 61 of the mentioned Spanish Corporate Income Tax Regulations approved by Spanish Royal Decree 634/2015, of 10 July 2015 (Reglamento del Impuesto sobre Sociedades aprobado por el Real Decreto 634/2015, de 10 de julio) as amended or restated.
“Spanish Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Spain.
“Spanish Public Document” means a documento público, being either a public deed (escritura pública) or a deed (póliza). “Spanish Treaty Lender” means a Lender which: (a) is treated as a resident of a Spanish Treaty State for the purposes of the
Spanish Treaty; (b) does not carry on a business in Spain through a permanent establishment with which that Lender’s
participation in the Credit Facilities is effectively connected; and (c) fulfils any conditions which must be fulfilled under the Spanish Treaty for tax residents of that Spanish Treaty State (including the completion of any procedural formalities) to obtain full exemption from Spanish taxation on interest payable to that Lender in respect of an advance under the Credit Facilities.
“Spanish Treaty State” means a jurisdiction having a double taxation agreement with Spain (a “Spanish Treaty”) which makes provision for full exemption from tax imposed by Spain on interest.
“Specified Foreign Jurisdictions” means Germany, Canada, Belgium, France, England and Wales, Sweden, Spain, Poland, Italy and the Netherlands.
“Specified Foreign Subsidiary” means each Subsidiary organized under the laws of a Specified Foreign Jurisdiction. “Specified Intercompany Claims” means, collectively, (i) that certain intercompany claim owed by Diebold Nixdorf Holding
Germany GmbH to the Company (the amount of which, as of the Closing Date, is approximately €656,000,000) and (ii) that
certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to the Dutch Issuer (the amount of which, as of the Closing Date, is approximately €343,000,000).
“Statutory Reserve Rate” 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 percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted EURIBOR Rate for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentage shall include those imposed pursuant to Regulation D. Term Benchmark Loans for which the associated Benchmark is adjusted by reference to the Statutory Reserve Rate (per the related definition of such Benchmark) shall be deemed to constitute eurocurrency funding 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 any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Subordinated Indebtedness” means any Indebtedness of the Company or any Subsidiary that is by its terms contractually subordinated in right of payment to any of the Obligations.
“Subordination Agreement” means a subordination agreement substantially in the form of Exhibit G or any other form approved by the Required Lenders or the Administrative Agent and the Company.
“Subsidiary” of a Person means (a) any corporation more than 50% of the outstanding securities having ordinary voting power of which shall at the time be owned or controlled, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries or (b) any partnership, limited liability company, unlimited liability company, association, joint venture or other business organization more than 50% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled. Unless otherwise expressly provided, all references herein to a “Subsidiary” means a Subsidiary of the Company.
“Substantial Portion” means, with respect to the Property of the Company and its Subsidiaries, Property which (a) represents consolidated assets in excess of $726,850,000 or (b) is responsible for consolidated net sales in excess of $887,880,000.
“Supported QFC” has the meaning assigned to it in Section 17.3.
“Supermajority Lenders” means Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 66 2/3% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders.
“Superpriority Term Loan Facility” means that certain credit agreement, dated as of the Closing Date, among the Company, Diebold Nixdorf Holding Germany GmbH, as the borrower, the Superpriority Term Loan Facility Administrative Agent, the Superpriority Term Loan Facility Collateral Agent, and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time .
“Superpriority Term Loan Facility Administrative Agent” means GLAS USA LLC, in its capacity as the administrative agent under the Superpriority Term Loan Facility, or any successor representative acting in such capacity.
“Superpriority Term Loan Facility Collateral Agent” means GLAS Americas LLC, in its capacity as the collateral agent under the Superpriority Term Loan Facility, or any successor representative acting in such capacity.
“Superpriority Term Loans” means the loans made to Diebold Nixdorf Holding Germany GmbH pursuant to the Superpriority Term Loan Facility.
“Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Agreement” 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, including any such obligations or liabilities under any master agreement.
“Swedish Collateral” has the meaning assigned to it in Section 1.13(l).
“Swedish Collateral Agreements” means the collateral agreements governed by Swedish law set forth on Schedule 1.1(b) hereof.
“Swedish Collateral Documents” means the Swedish Collateral Agreements and each security agreement, pledge, debenture, hypothec, mortgage, consent or other instrument or document, as applicable, governed by Swedish law in connection with this Agreement and the Agreed Security Principles to secure any of the Obligations; provided that each Swedish Collateral Document shall be in form and substance acceptable to the Collateral Agent (acting at the direction of the Required Lenders).
“Swedish Loan Party” means any Loan Party incorporated or otherwise organized under the laws of Sweden. “TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which
utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Taxes” means any present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Term Commitment” means the Dollar Term Commitment and/or the Euro Term Commitment, as the context requires. “Term Facility” means the Dollar Term Facility and/or the Euro Term Facility, as the context requires.
“Term Benchmark” when used in reference to any Loan or Advance, refers to whether such Loan, or the Loans comprising such Advance, are bearing interest at a rate determined by reference to the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate.
“Term Benchmark Rate” means, for any day, a rate per annum equal to the sum of (a) the Applicable Margin plus (b)(i) the Adjusted Term SOFR Rate, in the case of Term Benchmark Loans denominated in Dollars, or (ii) the Adjusted EURIBOR Rate, in the case of Term Benchmark Loans denominated in Euros.
“Term Lender” means a Dollar Term Lender and/or a Euro Term Lender, as the context requires. “Term Loan” means a Dollar Term Loan and/or a Euro Term Loan, as the context requires.
“Term Loan Exchange” has the meaning assigned to such term in the Transaction Support Agreement.
“Term Loan Maturity Date” means the earliest to occur of (a) July 15, 2025 and (b) the date the maturity of the Term Loans is accelerated pursuant to Article VIII.
“Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate. “Term SOFR Rate” means, with respect to any Term Benchmark Advance and for any tenor comparable to the applicable
Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., New York time, two U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any Term Benchmark Advance denominated in Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR
Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such
Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Total Assets” means the total assets of the Company and its Subsidiaries, determined in accordance with GAAP. “Total Debt” as of any date, means all of the following for the Company and its Subsidiaries on a consolidated basis and
without duplication: (i) all debt for borrowed money and similar monetary obligations evidenced by bonds, notes, debentures,
Finance Lease Obligations or otherwise, including without limitation obligations in respect of the deferred purchase price of properties or assets, in each case whether direct or indirect (other than accounts payable and/or accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case arising in the ordinary course of such Person’s business payable in accordance with customary practices); (ii) all reimbursement obligations under outstanding Letters of Credit (other than commercial Letters of Credit referenced in clause (i) above or Letters of Credit that are 100% cash collateralized) in respect of drafts which (A) may be presented (other than performance or standby Letters of Credit) or (B) have been presented and have not yet been paid and are not included in clause (i) above; (iii) all Off-Balance Sheet Liabilities; (iv) all Guarantee Obligations of indebtedness or liabilities of the type described in clauses (i), (ii) or (iii) above and (v) all obligations of the kind referred to in the foregoing clauses (i), (ii), (iii) or (iv) secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, provided that, if such Person has not assumed such obligations, then the amount of debt of such Person for purposes of this clause (v) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations. Notwithstanding the foregoing, each of the following shall be excluded from, and not considered part of, Total Debt: (1) money borrowed by the Company against the cash value of life insurance policies owned by the Company; (2) [reserved]; (3)
Indebtedness consisting of avals by any of the Company’s Subsidiaries for the benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the Company’s other Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices; and (4) Indebtedness permitted under Section 6.18(x).
“Total Net Debt” means, at any time, Total Debt minus 75% of all Unencumbered Cash with maturities of less than one year of the Company and its Subsidiaries calculated on a consolidated basis in accordance with GAAP.
“Total Net Leverage Ratio” means, as of any date, the ratio of (a) Total Net Debt on such date to (b) EBITDA for the period of four consecutive fiscal quarters ended on or most recently prior to such date.
“Transactions” has the meaning assigned to such term in the Transaction Support Agreement. “Transaction Premium” has the meaning assigned to such term in the Twelfth Amendment.
“Transaction Support Agreement” means that certain Transaction Support Agreement, dated as of October 20, 2022 (as amended by that certain First Amendment thereto, dated as of November 28, 2022 and as may be further amended from time to time), by and among the Company, the other Company Parties (as defined therein) and the Consenting Parties (as defined therein).
“Transferee” is defined in Section 13.2.
“Type” means, with respect to any Advance, its nature as a Floating Rate Advance or Term Benchmark Advance. “Twelfth Amendment” means the Twelfth Amendment to the Existing Term Loan Facility, dated as of the Closing Date.
“UCC” or “Uniform Commercial Code” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU
11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Unencumbered Cash” means all cash and Cash Equivalents owned by the Company or any Subsidiary not disclosed as restricted cash or restricted Cash Equivalents in the Company’s financial statements furnished pursuant to Section 6.1(i) or (ii)
(or as applicable prior to delivery thereof, those referenced in Section 5.4); provided that (i) cash or Cash Equivalents segregated or held in escrow for the sole purpose of refinancing Indebtedness permitted hereunder (and the payment of fees and expenses in connection therewith) while such refinancing is pending (provided such proceeds are so utilized within 11 months of incurrence thereof), in each case, shall not be disqualified from being considered Unencumbered Cash solely due to Liens or restrictions arising from such escrow arrangement or restricted usage and (ii) any cash and Cash Equivalents subject to any cash pooling arrangement or cash management in respect of netting services and similar arrangements shall be considered Unencumbered Cash only to the extent, with respect to any such arrangements, that the total amount of cash and Cash Equivalent on deposit subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto.
“Unfunded Liabilities” means the amount (if any) by which the actuarial present value of all benefit liabilities under a Plan exceeds the fair market value of all such Plan assets allocable to such benefit liabilities, all determined as of the then most recent valuation date for such Plan in accordance with Section 4001(a)(18) of ERISA.
“Units” has the meaning assigned to such term in the Transaction Support Agreement.
“Unmatured Default” means an event which but for the lapse of time or the giving of notice, or both, would constitute a Default.
“U.S. Dollar Loans” means any Loan denominated in U.S. Dollars.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code. “U.S. Special Resolution Regime” has the meaning assigned to it in Section 17.3.
“U.S. Tax Certificate” has the meaning assigned to such term in Section 3.4(f)(ii)(D).
“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or similar persons thereof.
“Warrants” has the meaning assigned to such term in the Transaction Support Agreement.
“Wholly Owned Subsidiary” of a Person means any other Person of which 100% of the outstanding Capital Stock of which (other than directors’ qualifying shares required by law) shall at the time be owned or controlled, directly or indirectly, by such Person and/or one or more Affiliates of such Person. “Wholly Owned Domestic Subsidiary” has the correlative meaning with respect to the such type of Subsidiary.
“Wincor Nixdorf Defined Benefit Pension Scheme” means the defined benefit pension scheme established pursuant to a definitive deed dated 1 December 2000 between Diebold Nixdorf (UK) Limited and Richard Mosely Bearpark.
“Withholding Agent” means, as applicable, any Loan Party or the Administrative Agent.
“Write-Down and Conversion Powers” means, (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.1.Rules of Construction. All terms defined in Section 1.1 shall include both the singular and the plural forms
thereof and shall be construed accordingly. Use of the terms “herein”, “hereof”, and “hereunder” shall be deemed references to this Agreement in its entirety and not to the Section or clause in which such term appears. References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided.
Notwithstanding anything herein, in any financial statements of the Company or in GAAP to the contrary, for purposes of calculating the Applicable Margin, including defined terms used therein, and for purposes of calculating any other applicable financial ratios or incurrence tests hereunder, any acquisitions or Dispositions outside the ordinary course of business made by the Company or any of its Subsidiaries, including through mergers, amalgamations or consolidations, the incurrence or repayment of Indebtedness and any other applicable transactions related thereto and occurring during the period for which such items were calculated, shall be deemed to have occurred on the first day of the relevant period for which such items were calculated on a Pro Forma Basis.
1.2.Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Company notifies the Administrative Agent that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Company 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 without giving effect to such change in GAAP or in the application thereof that is the subject of such notice until such notice shall have been withdrawn or such provision amended in accordance herewith. Notwithstanding any other provision contained herein, 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 any election under Financial Accounting Standards Board Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of
the Company or any Subsidiary at “fair value”, as defined therein, without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Financial Accounting Standards Board Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof. Notwithstanding any changes in GAAP after December 31, 2018, any lease of the Company or its Subsidiaries that would be characterized as an operating lease under GAAP in effect on December 31, 2018, whether such lease is entered into before or after December 31, 2018, shall not constitute Indebtedness or a Finance Lease Obligation of the Company or any Subsidiary under this Agreement or any other Loan Document as a result of such changes in GAAP.
1.3.Interest Rates; Benchmark Notification. The interest rate on a Loan denominated in dollars or an Alternative Currency may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.20(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Company. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Company, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.4.Foreign Currency Calculations.
(a)For purposes of determining the Dollar Equivalent Amount of any amount not denominated in Dollars (other than amounts referred to in clause (b) below), the Administrative Agent shall determine the Exchange Rate as of the applicable date of determination with respect to each applicable foreign currency and shall apply such Exchange Rates to determine such Dollar Equivalent Amount.
(b)For purposes of any determination under Section 6.15, 6.16, 6.18, 7.5, 7.9 or 7.10, all amounts incurred, outstanding or proposed to be incurred or outstanding in currencies other than U.S. Dollars shall be translated into the Dollar Equivalent Amount at the Exchange Rate in effect on the date of such determination; provided that no Default shall arise as a result of any limitation set forth in U.S. Dollars in Section 6.15, 6.16 or 6.18 being exceeded solely as a result of changes in the Exchange Rate from those rates applicable at the time or times Investments, Indebtedness or Liens were initially consummated in reliance on the exceptions under such Sections.
1.5.Divisions. For all purposes under the Loan Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
1.6.German Terms.
“AktG” means the German stock corporation act (Aktiengesetz). “BGB” means the German civil code (Bürgerliches Gesetzbuch).
“HGB” means the German commercial code (Handelsgesetzbuch). “InsO” means the German insolvency code (Insolvenzordnung).
In this Agreement, where it relates to a German Loan Party, any reference to:
(a)a person being unable to pay its debts means that person being in a state of Zahlungsunfähigkeit under section 17 of the German Insolvency Law (Insolvenzordnung) or being over-indebted (überschuldet) under section 19 of the German Insolvency Law (Insolvenzordnung);
(b)a liquidator, trustee in bankruptcy, compulsory manager, receiver or administrator includes an Insolvenzverwalter, a vorläufiger Insolvenzverwalter or a Sachwalter;
(c)winding up, administration or dissolution includes insolvency proceedings (Insolvenzverfahren);
(d)in relation to any Collateral or other security rights or security assets governed by German law or located in Germany “trust”, “trustee” or “on trust” shall be construed as “Treuhand”, “Treuhänder” or “treuhänderisch”;
(e)“by laws” or “constitutional documents” includes reference to articles of association (Satzung) or partnership agreement (Gesellschaftsvertrag); and
(f)a “director” or “officer” includes any statutory legal representative(s) (organschaftlicher Vertreter) of a person, including but not limited to, a managing director (Geschäftsführer) or member of the board of directors (Vorstand) or an authorised representative (Prokurist).
This Agreement is made in the English language. However, where a German translation of a word or phrase appears in the text of this Agreement, the German meaning and the underlying German law legal concept shall prevail.
1.7.Polish Terms. In this Agreement reference to:
“Polish Act on Registered Pledges” means the Polish Act on Registered Pledges and the Pledge Register dated 6 December 1996, as amended.
“Polish Bankruptcy Law” means the Polish Bankruptcy Law dated 28 February 2003, as amended. “Polish Civil Code” means the Polish Civil Code dated 23 April 1964, as amended.
“Polish Civil Procedure Code” means the Polish Civil Procedure Code dated 17 November 1964, as amended.
“Polish Commercial Companies Code” means the Polish Commercial Companies Code dated 15 September 2000, as amended.
“Polish Restructuring Law” means the Polish Restructuring Law dated 15 May 2015, as amended. In this Agreement, where it relates to a Polish Loan Party, a reference to:
(a)an “agent” includes an attorney (pełnomocnik), delivery agent (pełnomocnik do doręczeń), pledge administrator (administrator zastawu), mortgage administrator (administrator hipoteki) and mandatory (zleceniobiorca) of a person;
(b)a “composition”, “compromise”, “assignment”, “reorganisation” includes a układ concluded or approved during insolvency proceedings under Polish Bankruptcy Law or restructuring proceedings (postępowanie restrukturyzacyjne) under Polish Restructuring Law. This also includes a partial composition (układ częściowy);
(c)“receiver” or “administrator” includes a tymczasowy nadzorca sądowy, tymczasowy zarządca, nadzorca, nadzorca sądowy, nadzorca układu, syndyk, zarządca or zarządca przymusowy, as defined in Polish Bankruptcy Law or Polish Restructuring Law. This also includes zarządca appointed under the Act on Registered Pledges or the Polish Civil Procedure Code and a kurator sądowy appointed under the Polish Civil Code;
(d)a “dissolution” includes a rozwiązanie spółki in accordance with the Polish Commercial Companies Code;
(e)a “liquidator” includes a likwidator appointed under the Polish Commercial Companies Code;
(f)a “moratorium” includes a odroczenie spłaty zobowiązań pieniężnych;
(g)a “security” or “security interest” means any mortgage (hipoteka), pledge (zastaw), registered pledge (zastaw rejestrowy), financial pledge (zastaw finansowy), security assignment (przelew praw na zabezpieczenie), security transfer of title (przewłaszczenie na zabezpieczenie), retention right (prawo zatrzymania), right to reclaim sold goods (zastrzeżenie własności rzeczy sprzedanej);
(h)a “winding up” includes a declaration of bankruptcy.
1.8.Dutch Terms. As used in this Agreement, where it relates to a Dutch Loan Party, a reference to: (i) organizational documents means the deed of incorporation (akte van oprichting), articles of association (statuten) and an extract of the Dutch Chamber of Commerce (Kamer van Koophandel), (ii) a necessary corporate or other organizational action where applicable includes without limitation: (A) any action required to comply with the Works Councils Act of the Netherlands (Wet op de ondernemingsraden); and (B) obtaining a positive or neutral advice, which, if conditional, contains conditions which in the opinion of the Administrative Agent are acceptable and can reasonably be expected to be satisfied by the relevant Dutch Loan Party without breaching the terms of any Loan Document, from the competent works council(s); (iii) any Lien and any security interest includes any mortgage (hypotheek), pledge (pandrecht), retention of title arrangement (eigendomsvoorbehoud), privilege (voorrecht), right of retention (recht van retentie), right to reclaim goods (recht van reclame), and, in general, any right in rem (zakelijk recht) created for the purpose of granting security (goederenrechtelijk zekerheidsrecht); (iv) a bankruptcy, insolvency, liquidation, winding up, or dissolution (and any of those terms) includes a Dutch entity being declared bankrupt (failliet verklaard) or dissolved (ontbonden); (v) a moratorium includes (voorlopige) surseance van betaling and granted a moratorium includes (voorlopige) surseance verleend; (vi) a trustee, includes a curator and a liquidator includes a curator; (vii) an administrator includes a bewindvoerder, a beoogd bewinvoerder, a herstructureringsdeskundige or an observator, (viii) a receiver or an administrative receiver does not include a curator or bewindvoerder; (ix) any “procedure or step” taken in connection with insolvency proceedings includes a Dutch Loan Party having filed a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) (x) an attachment includes a beslag, (xi) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur), and (xii) a reorganization includes statutory proceedings for the restructuring of debt (akkoordprocedure) under the Dutch Bankruptcy Act (Faillissementswet), (xiii) a director includes a managing director (bestuurder) and board of directors includes a managing board (bestuur) and (xiv) a “subsidiary” includes a dochtermaatschappij as defined in Article 2:24a of the Dutch Civil Code (Burgerlijk Wetboek). Where “the Netherlands” or “Dutch” is referred to it refers only to the European part of the Kingdom of the Netherlands and its laws respectively.
1.9.Italian Terms.
In this Agreement reference to (in the case of paragraph (a) or (b) below, in relation to (or to the obligation of) any Italian Guarantor):
(a)a “winding-up”, “bankruptcy”, “insolvency”, “administration” or “dissolution” includes, without limitation, any liquidazione, procedura concorsuale (liquidazione giudiziale, composizione negoziata per la soluzione della crisi di impresa, concordato preventivo, piano attestato di risanamento, liquidazione coatta amministrativa, amministrazione straordinaria o ristrutturazione industriale delle grandi imprese in stato d’insolvenza), accordi di ristrutturazione, cessione dei beni ai creditori or any other similar proceedings;
(b)an “insolvency proceeding” means any insolvency proceeding and/or crisis regulation instrument governed by the Italian Corporate Crisis and Insolvency Code (including, but not limited to, the negotiated composition with creditors, the simplified composition with creditors, the certified reorganization plan, the debt restructuring agreement, simplified debt restructuring agreement, extended-effect debt restructuring agreement, moratorium agreement, restructuring plan subject to homologation, composition with creditors, pre-composition with creditors, judicial liquidation, composition with creditors in judicial liquidation procedure and forced administrative liquidation), the extraordinary administration, the extraordinary administration of large companies in difficulty or in insolvency, the transfer of the assets for the benefit of creditors under Article 1977 of the Italian Civil Code, and any other procedure pursuant to the Italian Legislative Decree No. 170/2004, as well as any procedure and/or crisis regulation instrument provided by foreign regulations and having similar purposes and/or effects to the insolvency proceedings and crisis regulation instruments as from time to time provided under Italian Law.
(c)a “receiver”, an “administrative receiver”, an “administrator” or the like includes, without limitation, a curatore, commissario giudiziale, commissario straordinario, commissario liquidatore, a liquidatore or any other person performing the same function of each of the foregoing;
(d)a “step” or “procedure” taken in connection with insolvency proceedings in respect of any person includes, without limitation, that person formally making a proposal to assign its assets pursuant to Article 1977 of the Italian Civil Code (cessione dei beni ai creditori), implementing a piano attestato di risanamento pursuant to Article 56 of the Italian Corporate Crisis and Insolvency Code, entering into an accordo di ristrutturazione con intermediari finanziari pursuant to Articles 61 of the Italian Corporate Crisis and Insolvency Code, filing a petition for a concordato preventivo or entering into a similar arrangement for a substantial part of its creditors;
(e)a “lease” includes, without limitations, a contratto di locazione, an affitto d’azienda and an affitto di ramo d’azienda; and
(f)a “matured obligation” includes, without limitation, any credito liquido ed esigibile and credito scaduto;
(g)a “security interest” includes, without limitation, any pegno, ipoteca, privilegio speciale (including the
privilegio speciale created pursuant to Article 46 of the Italian Banking Law), cessione del credito in garanzia, any
other garanzia reale or garanzia a prima domanda and any other garanzia personale or other transactions having the same effect as each of the foregoing;
(h)a reference to “financial assistance” means unlawful financial assistance within the meaning of Articles 2358 and/or 2474 of the Italian Civil Code as applicable; and
(i)an “attachment” includes a pignoramento.
1.10.Belgian Terms.
Without prejudice to the generality of any provision of the Loan Documents, in each Loan Document where it relates to a Belgian entity, a reference to:
(a)a “liquidator”, “receiver”, “administrator” or similar officer includes any
insolventiefunctionaris/praticien de l’insolvabilité, curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, ondernemingsbemiddelaar/médiateur d’entreprise, as applicable, and sekwester/séquestre;
(b)a “Security” includes any mortgage (hypotheek/hypothèque), pledge (pand/nantissement), any mandate to grant a mortgage, a pledge or any other real security (mandaat/mandat), privilege (voorrecht/privilège), reservation of title arrangement (eigendomsvoorbehoud/droit de rétention), any real security (zakelijke zekerheid/sûreté réelle) and any transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie);
(c)a person being “unable to pay its debts” is that person being in a state of cessation of payments (staking van betaling/cessation de paiements);
(d)a “moratorium”, “composition”, “assignment” or similar arrangement includes a minnelijk akkoord met schuldeisers/accord amiable avec des créanciers or gerechtelijke reorganisatie/réorganisation judiciaire, as applicable;
(e)an “insolvency” includes any insolventieprocedure/procédure d’insolvabilité, faillissement/faillite, gerechtelijke reorganisatie/réorganisation judiciaire and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);
(f)“winding up”, “bankruptcy”, “insolvency”, “administration”, “liquidation” or “dissolution” includes any vereffening/liquidation, ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/ fermeture d’une enterprise;
(g)an “attachment” or analogous events includes any uitvoerend beslag/saisie exécutoire and bewarend beslag/saisie conservatoire;
(h)a “merger” includes a overdracht van algemeenheid/transfert d’universalité, overdracht van
bedrijfstak/transfert de branche d’activité, splitsing/scission and fusie/fusion and assimilated transaction in accordance with Articles 12:7 and 12:8, as the case may be (gelijkgestelde verrichting/opération assimilée) of the Belgian Code of Companies and Associations;
(i)the “Belgian Civil Code” the Belgian oud Burgerlijk Wetboek/ancien Code Civil as amended and/or replaced from time to time;
(j)the “Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time;
(k)a “Belgian Guarantor” means a Guarantor incorporated in Belgium.
(l)“organizational documents” means the oprichtingsakte/acte constitutif, gecoördineerde statuten/statuts
and uittreksel van de Kruispuntbank van Ondernemingen/extrait de la Banque-Carrefour des Entreprises;
(m)a “subsidiary” shall be deemed to include a dochtervennootschap/filiale as defined in Article 1:15 of the Belgian Code of Companies and Associations;
(n)a “successor” means an algemene rechtsopvolger/successeur universel; and
(o)a Guarantor being “incorporated in Belgium” or “of which its jurisdiction of incorporation is Belgium”, means that such Guarantor has its statutory seat in Belgium.
1.11.Spanish Terms. Unless a contrary indication appears, a reference in this Agreement to: (i) a liquidator, a trustee in bankruptcy, a judicial custodian, a compulsory manager, a receiver, an administrative receiver and an administrator shall be construed, to the extent Spanish law is the applicable law as including administrador concursal, liquidador, administrador judicial, or any other person performing the same function as each of the foregoing; (ii) the winding up or dissolution or insolvency of a company or corporation shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such company is incorporated or any jurisdiction in which such company or corporation carries
on business including the seeking of liquidation, winding up, reorganisation, bankruptcy, moratorium of payments, division, statutory merger, dissolution, administration, arrangement, adjustment, protection or relief of debtors, in relation to any Spanish company, without limitation, concurso necesario, concurso voluntario, insolvencia, disolución, liquidación; and (iii) “financial assistance” means (a) in respect to a Spanish Loan Party incorporated as a sociedad anónima, financial assistance under
article 150 of the Spanish Companies Act or in any other legal provision that may substitute such article 150 or be applicable to any Spanish Loan Party in respect of such financial assistance; and (b) in respect to a Spanish Loan Party incorporated as a sociedad de responsabilidad limitada, financial assistance under article 143 of the Spanish Companies Act or in any other legal provision that may substitute such article 143 or be applicable to any Spanish Loan Party in respect of such financial assistance.
1.12.Swedish Terms. Notwithstanding and overriding any other provision of this Agreement and any other Loan Document and/or any exhibit or schedule thereto:
(a)any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent;
(b)for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Swedish Collateral Document, assign a proportionate part of the security interests granted under that Swedish Collateral Document together with a proportional part of the security interest in that Swedish Collateral Document;
(c)any security granted under a Swedish Collateral Document will be granted to the secured parties represented by the Collateral Agent;
(d)a “compromise” or “composition” with any creditor includes (a) any write-down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (b) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”);
(e)a “receiver”, “trustee” or “liquidator” includes (a) ‘rekonstruktör’ under the Swedish Company
Reorganisation Act, (b) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (c) ‘likvidator’ under the Swedish Companies Act;
(f)a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any ‘delning’ implemented in accordance with Chapter 24 of the Swedish Companies Act;
(g)a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a ‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act;
(h)“gross negligence” means ‘grov vårdslöshet’ under Swedish law;
(i)a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates;
(j)an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act;
(k)in relation to this Agreement and any other Loan Document, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden (including but not limited to the Swedish Loan Parties) will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the Swedish Companies Act.
(l)Notwithstanding any other provisions in this Agreement and/or the other Loan Documents, the release of any perfected Liens (or any Liens purported to be perfected) created by a Swedish Collateral Document (“Swedish Collateral”) will always be subject to the prior written consent of the Collateral Agent (acting in its sole discretion but in accordance with the applicable Swedish Collateral Document and Loan Document). Each Secured Party authorizes and directs the Collateral Agent to release Swedish Collateral as provided in Section 11.9 of this Agreement (but in accordance with the applicable Swedish Collateral Document and Loan Document) without notification or further reference to the Secured Parties. This provision supersedes any conflicting provision in this Agreement and/or the other Loan Documents.
1.13.Quebec Interpretative Provisions. For purposes of the interpretation or construction of this Agreement pursuant to the laws of the Province of Quebec, for purposes of any Collateral located in the Province of Quebec or charged by any deed of
hypothec (or any other Security Document) and for all other purposes pursuant to which the interpretation or construction of any other Security Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall be deemed to
include a “hypothec”, a “reservation of ownership”, “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the PPSA shall be deemed to include publication under the Civil Code of Quebec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to
include “legal hypothecs in favour of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solidarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”, (p) “easement” shall be deemed to include “servitude”, (q) “priority” shall be deemed to
include “prior claim” or “rank”, as applicable, (r) “survey” shall be deemed to include “certificate of location and plan”, (s) “fee simple title” and “fee title” shall be deemed to include “right of ownership”, (t) “foreclosure” shall be deemed to include “the
exercise of a hypothecary right”, (u) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (v) “lease” for personal or movable property shall be deemed to include a “contract of leasing (crédit-bail)” and (x) “deposit
account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Quebec.
1.14.French Terms. In this Agreement, where it relates to the French Loan Party:
(a)“gross negligence” means “faute lourde”;
(b)a “guarantee” means any type of “sûreté personnelle”;
(c)“merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code;
(d)a “security interest” includes any type of security (sûreté réelle) and transfer by way of security;
(e)a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f)“trustee, fiduciary and fiduciary duty” has in each case the meaning given to such term under any applicable law;
(g)“willful misconduct” means “dol”;
(h)a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code;
(i)a “suspension of payments,” a “moratorium of any indebtedness,” a “winding-up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or
“insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any
judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code;
(j)a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(k)a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refer to any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur”, “mandataire judiciaire”, “commissaire à l’exécution du plan”, “mandataire à l’exécution de l’accord”, or similar officer; and
(l)a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
ARTICLE II
THE CREDITS
2.1.Commitments.
(a)The Term Loans.
(i)Each Dollar Term Lender severally and not jointly agrees, on the terms and conditions set forth in this Agreement, to make to the Company on the Closing Date, a loan in a single draw (or deemed draw pursuant to the Term Loan Exchange) denominated in Dollars in an aggregate amount not to exceed the amount of such Dollar Term Lender’s Dollar Term Commitment. Dollar Term Loans may be Floating Rate Loans or Term Benchmark Loans, as further provided herein.
(ii)Each Euro Term Lender severally and not jointly agrees, on the terms and conditions set forth in this Agreement, to make to the Company on the Closing Date, a loan in a single draw (or deemed draw pursuant to the Term Loan Exchange) denominated in Euros in an aggregate amount not to exceed the amount of such Euro
Term Lender’s Euro Term Commitment. Euro Term Loans shall be Term Benchmark Loans, as further provided herein.
(iii)Amounts borrowed under this Section 2.1(a) and repaid or prepaid may not be reborrowed.
2.1.Repayment of Loans; Evidence of Debt.
2.2.1[Reserved].
2.2.2[Reserved].
2.2.3Term Loans.
(a)The Company unconditionally promises to repay the Term Loans borrowed by it to the Administrative Agent for the account of each Lender in quarterly principal installments (and on the date set forth in clause (ii) below) as follows:
(i)in the amount of 0.25% of the aggregate principal amount of the Term Loans made (or deemed made) on the Closing Date, due and payable on the last Business Day of each March, June, September and December of each year, commencing on March 31, 2023 and continuing until the last Business Day of such quarterly period ending immediately prior to the Term Loan Maturity Date; and
(ii)one final installment in the amount of the relevant Term Loans then outstanding, due and payable on the Term Loan Maturity Date.
2.2.4The Company hereby further agrees to pay to the Administrative Agent for the account of each Lender, interest on the unpaid principal amount of the Loans made to it from time to time outstanding until payment thereof in full at the rates per annum, and on the dates, set forth in Section 2.8.
2.2.5The books and records of the Administrative Agent and of each Lender shall, to the extent permitted by applicable law, be prima facie evidence of the existence and amounts of the obligations of the Company therein recorded; provided, however, that the failure of any Lender or the Administrative Agent to maintain any such books and records or any error therein, shall not in any manner affect the obligation of the Company to repay (with applicable interest) the Loans made to the Company by such Lender in accordance with the terms of this Agreement.
2.2.6The Company agrees that, upon the request to the Administrative Agent by any Lender from time to time and the subsequent request to the Company by the Administrative Agent, the Company will execute and deliver to such Lender promissory notes evidencing the Loans of any such requesting Lender, substantially in the form of Exhibit C attached hereto with appropriate insertions as to date and principal amount (each, a “Note”); provided that the delivery of such Notes shall not be a condition precedent to the Closing Date or any Advance.
2.2.Procedures for Borrowing Loans. To request a Loan under the Credit Facilities (which such Loan shall only be required to be made on a Business Day), the Company shall give the Administrative Agent notice (which notice must be received by the Administrative Agent prior to 11:00 a.m., New York City time three U.S. Government Securities Business Days prior to the requested Borrowing Date if all or any part of the requested Loans are to be Term Benchmark Loans or two Business Day prior to the requested Borrowing Date if all or any part of the requested Loans are to be Floating Rate Loans) specifying in each case (each such notice, a “Borrowing Notice”) (i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) [reserved],
(iv) whether such Loan is a Floating Rate Loan or a Term Benchmark Loan and (v) if applicable, the length of the initial Interest Period therefor. Each Advance shall be in Dollars or Euros, as applicable. Each such Advance shall be in a minimum amount of
$5,000,000 units or a whole multiple of $1,000,000 in excess thereof or such other amounts as may be agreed upon between the Company and the Administrative Agent. Upon receipt of any such notice from the Company, the Administrative Agent shall promptly notify the Lenders with respect to such Advance. Notwithstanding this Section 2.3 or anything else in this Agreement,
no Borrowing Notice shall be required for a deemed drawing of Loans effectuated pursuant to the Term Loan Exchange on the Closing Date.
2.3.Termination or Reduction. The Commitments shall terminate and be reduced to zero upon the making of the Term Loans on the Closing Date. For the avoidance of doubt, the Commitments in respect of the Credit Facilities shall be permanently reduced by the amount of any Term Loans made (or deemed to be made) hereunder.
2.4.Commitment and other Fees. The Company agrees to pay (or cause to be paid) to the Administrative Agent such other fees as separately agreed to in writing by the Company and such Persons and/or their applicable Affiliates. The amount of the Transaction Premium payable pursuant to the Twelfth Amendment to the Lenders on the Closing Date is set forth on Schedule 1.1(a), and shall be added to (but not be duplicative of) the amount of the Dollar Term Loans and Euro Term Loans, as applicable, outstanding on the Closing Date for the ratable account of each Lender on the Closing Date.
2.5.Optional and Mandatory Principal Payments.
2.6.1The Company may at any time and from time to time prepay Floating Rate Loans, in whole or in part upon at least three Business Days’ notice to the Administrative Agent, specifying the date and amount of prepayment; provided that such prepayment obligation may be conditioned on the occurrence of any subsequent event. If any such notice is given, the amount specified in such notice shall be due and payable on the date specified therein. Partial prepayment of Floating Rate Loans shall be in a minimum aggregate amount of $1,000,000 or any integral multiple of $1,000,000 in excess thereof.
2.6.2The Company may at any time and from time to time prepay (together with payment of any amount payable pursuant to Section 3.3) its Term Benchmark Loans in whole or in part, upon at least three Business Days’ notice to the Administrative Agent specifying the date and amount of prepayment; provided that such prepayment obligation may be conditioned on the occurrence of any subsequent event. Partial prepayments of Term Benchmark Loans shall be in a minimum aggregate principal amount of $5,000,000 or any integral multiple of $1,000,000 in excess thereof, or such lesser principal amount as may equal the outstanding Term Benchmark Loans or such lesser amount as may be agreed to by the Administrative Agent.
2.6.3[Reserved]
2.6.4[Reserved].
2.6.5Mandatory Prepayment of Term Loans. The Term Loans shall be subject to the following mandatory prepayment provisions; provided that such prepayment provisions (other than pursuant to Section 2.6.5(c)) shall only apply
(x) following the termination in full of the Commitments (as defined in the Superpriority Term Loan Facility) (in each case, other than in connection with a Permitted Refinancing of the Superpriority Term Loan Facility) and payment in full of all Obligations (as defined in the Superpriority Term Loan Facility) or (y) to the extent of any amount of mandatory prepayments that have been declined by the Lenders (as defined in the Superpriority Term Loan Facility) pursuant to Section 2.6.11 of the Superpriority Term Loan Facility.
(a)On and after the Closing Date, if any Indebtedness shall be issued or incurred by the Company or any Subsidiary (excluding any Indebtedness incurred in accordance with Section 6.18)), an amount equal to 100% of the Net Cash Proceeds thereof shall be applied on the date of such issuance or incurrence toward the prepayment of the Term Loans as set forth in Section 2.6.9.
(b)On and after the Closing Date, if the Company or any Subsidiary shall receive Net Cash Proceeds from any Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) then 100% of such Net Cash Proceeds less any Reinvestment Deferred Amount (if applicable) shall be applied on or prior to the fifth Business Day after such receipt (or in the case of an Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) in an amount less than or equal to
$25,000,000, on or prior to the date five Business Days after the date the financial statements for the fiscal quarter in which the aggregate amount of Net Cash Proceeds for all such Asset Sale Prepayment Events or Recovery Events for the four consecutive fiscal quarter period ending with such fiscal quarter exceed $25,000,000 are required to be delivered pursuant to Section 6.1(i) or (ii)), toward the prepayment of the Term Loans as set forth in Section 2.6.9; provided that, notwithstanding the foregoing, no later than each Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event shall be applied toward the prepayment of the Term Loans as set forth in Section 2.6.9.
Prepayments from, and, without duplication, of amounts equal to, Net Cash Proceeds of any Asset Sale Prepayment Event or Recovery Event by a Foreign Subsidiary (to the extent otherwise required) will be limited to the extent (x) the repatriation of Foreign Subsidiaries’ funds to fund such prepayments is prohibited, restricted or delayed by applicable laws or (y) repatriation of Foreign Subsidiaries’ funds to fund such prepayment could reasonably be expected to result in material adverse tax consequences to the Company and its Subsidiaries. All mandatory prepayments are subject to permissibility under (a) in the case of Foreign Subsidiaries, local law restrictions (such as restrictions relating to financial assistance, corporate benefit, restrictions on upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant Subsidiaries) and (b) with respect to non-Wholly Owned Subsidiaries, organizational document restrictions, to the extent not created in contemplation of
such prepayments. The non-application of any such mandatory prepayment amounts in compliance with the foregoing provisions of this paragraph will not constitute an Unmatured Default or Default and such amounts shall be available for working capital purposes of the Company and its Subsidiaries. The Company will undertake to use commercially reasonable efforts to overcome or eliminate any such restrictions and/or minimize any such costs of prepayment (subject to the considerations above) to make the relevant payment. Notwithstanding the foregoing, any prepayments made after application of the above provisions shall be net of any costs, expenses or taxes incurred by the Company and its Subsidiaries or any of its Affiliates or equity partners and arising as a result of compliance with this paragraph.
(c)The Company shall prepay the Term Loans as set forth in Section 2.6.9 (i) on the Closing Date, in the amount specified on Schedule 2.6.5(c) as payable on such date, (ii) on December 31, 2023 if Liquidity on such date exceeds $250,000,000, in the amount specified on Schedule 2.6.5(c) as payable on such date and (iii) solely in the event the repayment in clause (ii) is not made as a result of the Liquidity being less than or equal to $250,000,000 on December 31, 2023, on December 31, 2024, if Liquidity on such date exceeds $250,000,000, in the amount specified on Schedule 2.6.5(c) as payable on such date (the “New Term Loan Paydown”); provided that the amount of any prepayment required pursuant to clause (ii) or (iii) above shall be reduced by the amount of amortization payments actually made pursuant to Section 2.6.3(a)(i) (x) in the case of clause (ii), from January 1, 2023 through December 31, 2023 and (y) in the case of clause (iii), from January 1, 2023 through December 31, 2024.
2.1.1Each prepayment pursuant to this Section 2.6 shall be accompanied by accrued and unpaid interest and premium, if any, on the amount prepaid to the date of prepayment and any amounts payable under Section 3.3 in connection with such payment. Each conversion (other than a conversion of a Floating Rate Loan to a Term Benchmark Loan) pursuant to Section 2.7 shall be accompanied by accrued and unpaid interest, if any, on the amount converted to the date of conversion and any amounts payable under Section 3.3 in connection with such conversion.
2.1.2If two different Types of U.S. Dollar Loans of a particular Class are outstanding, the applicable prepayment pursuant to this Section 2.6 shall be applied first to prepay Floating Rate Loans and second to prepay Term Benchmark Loans then outstanding in such order as the Company may direct.
2.1.3[Reserved].
2.1.4All prepayments of the Term Loans shall be applied ratably among the outstanding Classes of Term Loans according to the respective outstanding principal amounts thereof, and within each such Class the amount of each such principal prepayment shall be applied pro rata to reduce the then remaining installments of such Class of Term Loans.
2.1.5[Reserved].
2.1.6Notwithstanding anything in Section 2.6, any Term Lender may elect not to accept its pro rata portion of any amount prepaid under 2.6.5 pursuant to procedures reasonably satisfactory to the Administrative Agent, and the Company may prepay the 2025 Notes or the New 2L Notes, and in each case, any Permitted Refinancing Indebtedness in respect thereof from any such declined amounts.
2.1.7If at the time that any mandatory prepayment would be required pursuant to Section 2.6.5(b), the Company is required to repay or repurchase or to offer to repurchase or repay Pari Passu Lien Debt, which is secured by a pari passu Lien with respect to the assets or property subject to the Asset Sale Prepayment Event or Recovery Event, pursuant to the terms of the documentation governing such Indebtedness with the Net Cash Proceeds from any such Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) (such Pari Passu Lien Debt required to be repaid or repurchased or to be offered to be so repaid or repurchased, “Other Applicable Asset Sale Indebtedness”), then the Company may offer and apply the Net Cash Proceeds from such Asset Sale Prepayment Event or Recovery Event (or series of related Asset Sale Prepayment Events or Recovery Events) on a pro rata basis (determined based on the aggregate outstanding principal amount of the Term Loans and the Other Applicable Asset Sale Indebtedness at such time) and, to the extent so offered and applied to such Other Applicable Asset Sale Indebtedness, the amount of prepayment of the Term Loans that would have otherwise been required pursuant to Section 2.6.5(b) shall be reduced accordingly.
2.1.Conversion and Continuation of Outstanding Advances. Floating Rate Advances shall continue as Floating Rate Advances unless and until such Floating Rate Advances are converted into Term Benchmark Advances. Each Term Benchmark Advance shall continue as a Term Benchmark Advance until the end of the then applicable Interest Period therefor, at which time such Term Benchmark Advance shall be automatically converted into a Floating Rate Advance in the case of U.S. Dollar Loans or automatically continued for an Interest Period of one month in the case of Euro Term Loans, unless the Company shall have given the Administrative Agent a Conversion/Continuation Notice requesting that, at the end of such Interest Period, such Term Benchmark Advance continue as a Term Benchmark Advance for the same or another Interest Period. Subject to the terms hereof, the Company may elect from time to time to convert all or any part of an Advance of any Type into any other Type or Types of Advance (subject to, in the case of conversion of any Term Benchmark Advance other than on the last day of the Interest Period applicable thereto, payment of any amounts payable under Section 3.3 in connection therewith). The Company shall give the Administrative Agent irrevocable notice (a “Conversion/Continuation Notice”) of each conversion of an Advance or continuation of a Term Benchmark Advance not later than 11:00 a.m. (New York City time) at least one Business Day, in the
case of a conversion into a Floating Rate Advance, or three U.S. Government Securities Business Days, in the case of a conversion into or continuation of a Term Benchmark Advance, prior to the date of the requested conversion or continuation, specifying:
(a)the requested date, which shall be a Business Day, of such conversion or continuation,
(b)the aggregate amount and Type of the Advance which is to be converted or continued, and
(c)the amounts and Type(s) of Advance(s) into which such Advance is to be converted or continued and, in the case of a conversion into or continuation of a Term Benchmark Advance, the duration of the Interest Period applicable thereto.
2.1.Interest Rates, Interest Payment Dates; Interest and Fee Basis.
(a)Each Floating Rate Loan shall bear interest on the outstanding principal amount thereof, for each day from and including the date such Loan is made or is converted from a Term Benchmark Loan into a Floating Rate Loan pursuant to Section 2.7 to but excluding the date it becomes due or is converted into a Term Benchmark Loan pursuant to Section 2.7 hereof, at a rate per annum equal to the Floating Rate for such day. Each Term Benchmark Loan shall bear interest for each day during each Interest Period with respect thereto at a rate per annum equal to the Term Benchmark Rate determined for such Interest Period.
(b)Interest accrued on each Floating Rate Advance shall be payable on each Payment Date, commencing with the first such date to occur after the Closing Date and at maturity. Interest accrued on each Term Benchmark Advance shall be payable on the last day of its applicable Interest Period, on any date on which the Term Benchmark Advance is repaid, whether by acceleration or otherwise, and at maturity. Interest accrued on each Term Benchmark Advance having an Interest Period longer than three months shall also be payable on the last day of each three-month interval during such Interest Period.
(c)Interest shall be payable for the day an Advance is made but not for the day of any payment on the amount paid if payment is received prior to 1:00 p.m. (local time) at the place of payment. If any payment of principal of or interest or fee on an Advance shall become due on a day which is not a Business Day, except as otherwise provided in the definition of Interest Period, such payment shall be made on the next succeeding Business Day and, in the case of a principal payment, such extension of time shall be included in computing interest in connection with such payment.
(d)All interest and fees shall be computed on the basis of the actual number of days (including the first day but excluding the last day) occurring during the period such interest or fee is payable over a year comprised of 360 days or, in the case of Floating Rate Loans based on the Prime Rate, 365/366 days.
(e)Changes in the rate of interest on that portion of any Advance maintained as a Floating Rate Advance will take effect simultaneously with each change in the Alternate Base Rate. Each Term Benchmark Advance shall bear interest on the outstanding principal amount thereof from and including the first day of the Interest Period applicable thereto to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such Term Benchmark Advance.
(f)For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Agreement and the other Loan Documents (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
(g)If any provision of this Agreement or other Loan Document would oblige any Canadian Loan Party to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Lender of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Lender shall have received an amount in excess of the maximum permitted by section 347 of the Criminal Code (Canada), the applicable Canadian Loan Party shall be entitled to obtain reimbursement from such Lender in an amount equal to such excess and, pending such reimbursement, such amount shall be deemed to be an amount payable by such Lender to such Canadian Loan Party.
2.1.Rates Applicable After Default. Notwithstanding anything to the contrary contained in this Agreement, during the continuance of a Default the Required Lenders may, at their option, by notice to the Company (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders to changes in interest rates), declare that no Advance may be made as, converted into or continued (after the expiration of the then current Interest Period) as a Term Benchmark Advance, provided that, notwithstanding the foregoing, any outstanding Euro Term Loan may be continued for an Interest Period of one month after such notice to the Company by the Required Lenders. Upon and during the continuance of any Default under Section 7.2 with respect to principal, interest or fees, the Required Lenders may, at their option, by notice to the Company (which notice may be revoked at the option of the Required Lenders notwithstanding any provision of Section 8.2 requiring unanimous consent of the Lenders as to changes and interest rates) declare that (i) each Term Benchmark Advance shall bear interest for the remainder of the applicable Interest Period at the rate otherwise applicable to such Interest Period plus 2% per annum, and (ii) each Floating Rate Advance and any other amount due under this Agreement shall bear interest at a rate per annum equal to the Floating Rate otherwise applicable to Floating Rate Loans plus 2% per annum, provided that, upon and during the continuance of any acceleration for any reason of any of the Obligations, the interest rate set forth in clauses (i) and (ii) shall be applicable to all Advances without any election or action on the part of the Administrative Agent or any Lender.
2.2.Pro Rata Payment, Method of Payment; Proceeds of Collateral.
(a)Each borrowing of a Class of Loans from the Lenders thereunder shall be made pro rata according to the Pro Rata Shares of the applicable Lenders of such Class in effect on the date of such borrowing. Except as otherwise provided in this Agreement, each payment on account of any premium shall be allocated by the Administrative Agent among the Lenders in accordance with their respective Pro Rata Shares. Except as otherwise provided in this Agreement, each payment (including each prepayment) by the Company hereunder on account of principal, interest, commitment or ticking fees on its Loans shall be allocated by the Administrative Agent pro rata to the Lenders according to their respective outstanding Pro Rata Shares. All payments (including prepayments) to be made by the Company hereunder, whether on account of principal, interest, fees or otherwise, shall be made, without setoff, deduction, or counterclaim, in immediately available funds to the Administrative Agent for the account of the Lenders at the applicable payment office of the Administrative Agent for such payment specified from time to time in writing by the Administrative Agent to the Company by 1:00 P.M. (local time) on the date when due. Each payment delivered to the Administrative Agent for the account of any Lender shall be delivered promptly by the Administrative Agent to such Lender in the same type of funds received by the Administrative Agent. All payments hereunder shall be in Dollars.
(b)Application of Proceeds of Collateral and Guaranty. Subject to the terms of any Intercreditor Agreement, all amounts received under any Guaranty and all proceeds received by the Administrative Agent and/or Collateral Agent from the sale or other liquidation of the Collateral when a Default exists shall first be applied as payment of the accrued and unpaid fees of the Administrative Agent and/or Collateral Agent hereunder and then to all other unpaid or unreimbursed Obligations (including reasonable attorneys’ fees and expenses in accordance with Section 10.6) owing to (a) the Administrative Agent in its capacity as Administrative Agent and (b) the Collateral Agent in its capacity as Collateral Agent, and then any remaining amount of such proceeds shall be distributed as follows:
(iv)first, to the Secured Parties, pro rata in accordance with the respective unpaid amounts of Obligations then owing, until all the Obligations then owing have been paid and satisfied in full or cash collateralized;
(v)second, to the Person entitled thereto as directed by the Company or as otherwise determined by applicable law or applicable court order.
(c)Noncash Proceeds. Notwithstanding anything contained herein to the contrary, if the Collateral Agent shall ever acquire any Collateral through foreclosure or by a conveyance in lieu of foreclosure or by retaining any of the Collateral in satisfaction of all or part of the Obligations or if any proceeds of Collateral received by the Collateral Agent to be distributed and shared pursuant to this Section 2.10 are in a form other than immediately available funds, the Collateral Agent shall not be required to remit any share thereof under the terms hereof and the Secured Parties shall only be entitled to their undivided interests in the Collateral or noncash proceeds as determined by paragraph (b) of this Section 2.10. The Secured Parties shall receive the applicable portions (in accordance with the foregoing paragraph (b)) of any immediately available funds consisting of proceeds from such Collateral or proceeds of such noncash proceeds so acquired only if and when received by the Collateral Agent in connection with the subsequent disposition thereof. While any Collateral or other property to be shared pursuant to this Section is held by the Collateral Agent pursuant to this paragraph (c), the Collateral Agent shall hold such Collateral or other property for the benefit of the Secured Parties and all matters relating to the management, operation, further disposition or any other aspect of such Collateral or other property shall be resolved by the agreement of the Required Lenders.
(d)Return of Proceeds. If at any time payment, in whole or in part, of any amount distributed by the Administrative Agent or the Collateral Agent hereunder is rescinded or must otherwise be restored or returned by the
Administrative Agent or the Collateral Agent as a preference, fraudulent conveyance, or otherwise under any bankruptcy, insolvency, or similar law, then each Person receiving any portion of such amount agrees, upon demand, to return the portion of such amount it has received to the Administrative Agent or the Collateral Agent (as applicable).
(e)Insufficient Funds. If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
2.1.Telephonic Notices. The Company hereby authorizes the Lenders and the Administrative Agent to extend, convert or continue Advances, effect selections of Types of Advances and to transfer funds based on telephonic notices made by any Person or Persons the Administrative Agent or any Lender reasonably and in good faith believes to be an Authorized Officer. The Company agrees to deliver promptly to the Administrative Agent a written confirmation, if such confirmation is requested by the Administrative Agent or any Lender, of each telephonic notice signed by an Authorized Officer. If the written confirmation differs in any material respect from the action taken by the Administrative Agent and the Lenders, the records of the Administrative Agent and the Lenders shall govern absent manifest error.
2.2.Notification of Advances, Interest Rates, Prepayments and Commitment Reductions. Promptly after receipt thereof, the Administrative Agent will notify each Lender of the contents of each Commitment reduction notice, Borrowing Notice, Conversion/Continuation Notice, and repayment notice received by it hereunder. The Administrative Agent will notify each Lender of the interest rate applicable to each Term Benchmark Advance promptly upon determination of such interest rate and will give each Lender prompt notice of each change in the Alternate Base Rate.
2.3.Lending Installations. Each Lender may, subject to Section 3.5, make and book its Loans at any Lending Installation(s) selected by such Lender and may change its Lending Installation(s) from time to time. All terms of this Agreement shall apply to any such Lending Installation(s) and the Notes, if any, shall be deemed held by each Lender for the benefit of such Lending Installation(s). Each Lender may, by written or telex notice to the Administrative Agent and the Company, designate one or more Lending Installations which are to make and book Loans and for whose account Loan payments are to be made.
2.4.Non-Receipt of Funds by the Administrative Agent. Unless the Company or a Lender, as the case may be, notifies the Administrative Agent prior to the date on which it is scheduled to make payment to the Administrative Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case of the Company, a payment of principal, interest or fees to the Administrative Agent for the account of the Lenders, that it does not intend to make such payment, the Administrative Agent may assume that such payment has been made. The Administrative Agent may, but shall not be obligated to, make the amount of such payment available to the intended recipient in reliance upon such assumption. If such Lender or the Company, as the case may be, has not in fact made such payment to the Administrative Agent, the recipient of such payment shall, on demand by the Administrative Agent, repay to the Administrative Agent the amount so made available together with interest and premium, if any, thereon in respect of each day during the period commencing on the date such amount was so made available by the Administrative Agent until the date the Administrative Agent recovers such amount at a rate per annum equal to (i) in the case of payment by a Lender, the Federal Funds Effective Rate for the first five days and the interest rate applicable to the relevant Loan for each day thereafter or (ii) in the case of payment by the Company, the interest rate applicable to the relevant Loan.
2.5.Italian Usury Law.
(a)The rate of interest applicable to each Loan guaranteed by an Italian obligor under this Agreement (including the relevant component of any applicable fee and expense) determined as of the date of execution of this Agreement is considered in good faith by each of the parties to be in compliance with Law No. 108 of 7 March 1996 as amended (the “Italian Usury Law”); and
(b)In any event, if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest applicable to a Loan guaranteed by an Italian obligor or the default rate of interest (if due at such time from an Italian obligor) at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the obligations of the Italian obligor, as guarantor and payor of the relevant interest rate or default rate, shall immediately be reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not.
2.1.[Reserved].
2.2.Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)the Commitments and Aggregate Outstandings of such Defaulting Lender shall not be included in determining whether all Lenders, all affected Lenders or Required Lenders have taken or may take any action hereunder (including any consent to any amendment or waiver pursuant to Section 8.2), provided that any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender which affects such Defaulting Lender differently than other affected Lenders (other than as a result of such Defaulting Lender having a greater or
lesser Aggregate Outstandings or Commitments) or which increases the amount of any Commitment of such Defaulting Lender, forgives any principal amount of any Loans owing to such Defaulting Lender or any interest (other than default interest) or fees owing to such Defaulting Lender previously accrued at the time of such forgiveness or extends the termination date of such Commitment or extends the final maturity beyond the then maturity date of any Loan Note with respect to such Defaulting Lender shall require the consent of such Defaulting Lender; and
(b)any amount payable to such Defaulting Lender hereunder (whether on account of principal, interest, fees or otherwise and including any amount that would otherwise be payable to such Defaulting Lender pursuant to
Section 2.17 but excluding Section 3.5) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable Requirements Of Law, be applied at such time or times as may be determined by the Administrative Agent (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, (ii) second, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, (iii) third, if so determined by the Administrative Agent and the Company, held in such account as cash collateral for future obligations of the Defaulting Lender under this Agreement, (iv) fourth, pro rata, to the payment of any amounts owing to the Company or the Lenders as a result of any judgment of a court of competent jurisdiction obtained by the Company or any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement and (v) fifth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if such payment is a prepayment of the principal amount of any Loans, such payment shall be applied solely to prepay the Loans of all non-Defaulting Lenders pro rata prior to being applied to the prepayment of any Loans any Defaulting Lender.
In the event that the Administrative Agent and the Company each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, such Lender shall cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Company while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
2.1.Guaranties.
(a)[Reserved].
(b)On and after the Closing Date, within 45 days (or such longer period of time contemplated by the Collateral and Guarantee Requirements or as the Administrative Agent shall agree) after delivery (or date of required delivery) of each set of applicable financial statements pursuant to 6.1(i) and (ii) and with respect to any Person that becomes a Subsidiary (other than an Excluded Subsidiary) after the Closing Date, within 45 days of such Person becoming a Subsidiary (other than an Excluded Subsidiary), the Company shall take all actions (if any) required to be taken to satisfy the Collateral and Guarantee Requirements with respect to (i) each Wholly Owned Domestic Subsidiary (other than an Excluded Subsidiary) and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded Indebtedness of (A) any Loan Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000), the assets of each such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Loan Party such that (i) all Wholly Owned Domestic Subsidiaries (other than Excluded Subsidiaries) and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded Indebtedness of (A) any Loan Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000) are Guarantors as of such date.
(c)In connection with the delivery of any such Guaranties and Security Documents and the satisfaction of the Collateral and Guarantee Requirements, the Company shall provide such other documentation to the Administrative Agent and Collateral Agent, including, without limitation, one or more opinions of counsel reasonably satisfactory to the Administrative Agent and Collateral Agent (acting at the direction of the Required Lenders), corporate documents and resolutions, which in the reasonable opinion of the Administrative Agent and Collateral Agent (acting at the direction of the Required Lenders) is necessary or advisable in connection therewith. For the avoidance of doubt, notwithstanding the above, for so long as a Subsidiary of the Company guarantees the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing Term Loan Facility and/or the ABL Facility or any other Indebtedness for borrowed money subject to the covenant set forth in Section 6.28 (or in each case any refinancing, renewal or replacement thereof), such Subsidiary will be required to guaranty the Obligations.
2.1.[Reserved].
2.2.Alternate Rate of Interest.
(a)Subject to clauses (b), (c), (d), (e) and (f) of this Section 2.20, if:
(vi)the Administrative Agent determines (which determination shall be conclusive absent manifest error) prior to the commencement of any Interest Period for a Term Benchmark Advance, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate (including because the Term SOFR Reference Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period; or
(vii)the Administrative Agent is advised by the Required Lenders that prior to the commencement of any Interest Period for a Term Benchmark Advance, the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate for the applicable Agreed Currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Term Loans (or its Term Loan) included in such Borrowing for the applicable Agreed Currency and such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the Lenders by telephone, telecopy or electronic mail as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and
(y) the Company delivers a new Conversion/Continuation Notice in accordance with the terms of Section 2.7, (A) for Loans denominated in Dollars, any Conversion/Continuation Notice that requests the conversion of any Advance to, or continuation of any Advance as, a Term Benchmark Advance in Dollars shall instead be deemed to be a Conversion/Continuation Notice for a Floating Rate Advance and (B) for Loans denominated in an Alternative Currency, any Conversion/Continuation Notice that requests the conversion of any Advance to, or continuation of any Advance as, a Term Benchmark Borrowing in such Alternative Currency shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Advance, then all other Types of Advance shall be permitted. Furthermore, if any Term Benchmark Loan in any Agreed Currency is outstanding on the date of the
Company’s receipt of the notice from the Administrative Agent referred to in this Section 2.20(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until (x) the Administrative Agent notifies the Company and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Company delivers a new Conversion/Continuation Notice in accordance with the terms of Section 2.7, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Floating Rate Loan on such day and (B) for Loans denominated in an Alternative Currency, any Term Benchmark Loan shall, on the last day of the Interest Period applicable to such Loan bear interest at the Central Bank Rate for the applicable Alternative Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the
Company’s election prior to such day: (x) be prepaid by the Company on such day or (y) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Alternative Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time.
(b)Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with
clause (1) of the definition of “Benchmark Replacement” with respect to Dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (y) if a Benchmark
Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” with respect to any Agreed Currency for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
(c)Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
(d)The Administrative Agent will promptly notify the Company and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.20, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.20.
(e)Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate or EURIBOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f)Upon the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Company may revoke any request for a conversion to or continuation of Term Benchmark Loans during any Benchmark Unavailability Period and, failing that, either (x) the Company will be deemed to have converted any request for a continuation of a Term Benchmark Advance denominated in Dollars into a request for a conversion to a Floating Rate Borrowing or (y) any Term Benchmark Advance denominated in an Alternative Currency shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Alternate Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Alternate Base Rate. Furthermore, if any Term Benchmark Loan in any Agreed Currency is outstanding on the date of the Company’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan, then until such time as a Benchmark Replacement for such Agreed Currency is implemented pursuant to this Section 2.20, (A) for Loans denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Floating Rate Loan on such day and (B) for Loans denominated in an Alternative Currency, any Term Benchmark Loan shall, on the last day of the Interest Period applicable to such Term Loan bear interest at the Central Bank Rate for the applicable Alternative Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Alternative Currency cannot be determined, any outstanding affected Term Benchmark Loans denominated in any Alternative Currency shall, at the Company’s election prior to such day: (a) be prepaid by the Company on such day or (b) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any Alternative Currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time.
2.1.[Reserved].
2.2.Loan Modification Offers.
2.22.1The Company may on one or more occasions after the Closing Date, by written notice to the Administrative Agent, make one or more offers (each, a “Loan Modification Offer”) to all (and not fewer than all) the Lenders of one or more Classes (each Class subject to such a Loan Modification Offer, an “Affected Class”) to make one or more Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Company. Such notice shall set forth (i) the terms and conditions of the requested Loan Modification Offer and (ii) the date on which such Loan Modification Offer is requested to become effective. Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Affected Class that accept the applicable Loan Modification Offer (such Lenders, the “Accepting Lenders”) and, in the case of any Accepting Lender, only with respect to such Lender’s Loans and Commitments of such Affected Class as to which such Lender’s acceptance has been made. With respect to all Permitted Amendments consummated by the Company pursuant to this Section 2.22, any Loan Modification Offer, unless contemplating a maturity date already in effect hereunder pursuant to a previously consummated Permitted
Amendment, must be in a minimum amount of $25,000,000 (or such lesser amount as may be approved by the Administrative Agent); provided that the Company may at its election specify as a condition (a “Minimum Extension Condition”) to consummating any such Permitted Amendment that a minimum amount (to be determined and specified in the relevant Loan Modification Offer in the Company’s sole discretion and which may be waived by the Company) of Commitments or Loans of any or all Affected Classes be extended. If the aggregate principal amount of Commitments or Loans of any Affected Class in respect of which Lenders shall have accepted the relevant Loan Modification Offer shall exceed the maximum aggregate principal amount of Commitments or Loans of such Affected Class offered to be extended by the Company pursuant to such Loan Modification Offer, then the Commitments and Loans of such Lenders shall be extended ratably up to such maximum amount based on the relative principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Loan Modification Offer.
2.1.8Permitted Amendments shall be effected pursuant to a Loan Modification Agreement executed and delivered by the Company, each Accepting Lender and the Administrative Agent; provided that no Permitted Amendment shall become effective unless (i) the Company shall have certified that (a) no Unmatured Default or Default shall have occurred and be continuing on the date of effectiveness thereof and (b) on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (x) in the case of the representations and warranties qualified as to materiality, in all respects and (y) otherwise, in all material respects, in each case on and as of such date, except in the case of any such representation and warranty that specifically relates to an earlier date, in which case such representation and warranty shall be so true and correct on and as of such earlier date, (ii) the Company shall have delivered, or agreed to deliver by a date following the effectiveness of such Permitted Amendment reasonably acceptable to the Administrative Agent (acting at the direction of the Required Lenders), to the Administrative Agent and the Collateral Agent such legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other documents (including reaffirmation agreements, supplements and/or amendments to Mortgages or other Security Documents, in each case to the extent applicable) as shall reasonably be requested by the Administrative Agent or the Collateral Agent (acting at the direction of the Required Lenders) in connection therewith and (iii) any applicable Minimum Extension Condition shall be satisfied (unless waived by the Company). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Loan Modification Agreement. Each Loan Modification Agreement may, without the consent of any Lender other than the applicable Accepting Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to give effect to the provisions of this Section 2.22, including any amendments necessary to treat the applicable Loans and/or Commitments of the Accepting Lenders as a new Class of loans and/or commitments hereunder (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into any such amendments).
ARTICLE III
CHANGE IN CIRCUMSTANCES, TAXES
3.1.[Reserved].
3.2.Increased Costs.
(m)If any Change in Law shall:
(i)impose, modify or deem applicable any reserve, special deposit, liquidity or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted EURIBOR Rate);
(ii)impose on any Lender or the applicable offshore interbank market for the applicable Agreed Currency any other condition, cost or expense (other than Taxes) affecting this Agreement or the Loans made by such Lender; or
(iii)subject any Recipient to any Taxes on its loans, loan principal, commitments, or other obligations hereunder, or its deposits, reserves, other liabilities or capital attributable thereto (other than (A) Indemnified Taxes; and (B) Excluded Taxes);
and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making or maintaining any Loan or of maintaining its obligation to make any such Loan or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder, whether of principal, interest or otherwise, then the Company will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered.
(n)If any Change in Law regarding capital requirements or liquidity has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement or the Loans made by such Lender to a level below that which such Lender or such
Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from
time to time the Company will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.
(o)A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section 3.2 shall be delivered to the Company and shall be conclusive absent manifest error. Subject to paragraph (d) of this Section 3.2, the Company shall pay such Lender the amount shown as due on any such certificate, absent manifest error, within 30 days after receipt thereof.
(p)Failure or delay on the part of any Lender to demand compensation pursuant to this Section 3.2 shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Company shall not be required to compensate a Lender pursuant to this Section 3.2 for any increased costs or reductions incurred more than 180 days prior to the date that such Lender notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
3.3.Break Funding Payments. In the event of (a) the payment of any principal of any Term Benchmark Loan other than on the last day of an Interest Period applicable thereto (including as a result of a Default), (b) the conversion of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto, (c) the failure to borrow, convert, continue or prepay any Term Benchmark Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked and is revoked) or (d) the assignment of any Term Benchmark Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Company pursuant to Section 3.5, then, in any such event, the Company shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section 3.3 shall be delivered to the Company and shall be conclusive absent manifest error. The Company shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof.
3.4.Withholding of Taxes; Gross-Up. (a) Each payment by or on account of any obligation of any Loan Party under any Loan Document shall be made without deduction or withholding for any Taxes, unless such deduction or withholding is required by applicable law. If any Withholding Agent determines, in its sole discretion exercised in good faith, that it is so required to deduct or withhold Taxes, then such Withholding Agent may so deduct or withhold and shall timely pay the full amount of Taxes deducted or withheld to the relevant Governmental Authority in accordance with applicable law. If such Taxes are Indemnified Taxes, then the amount payable by such Loan Party shall be increased as necessary so that, net of such deduction or withholding (including such deduction or withholding applicable to additional amounts payable under this Section 3.4), the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(b)Payment of Other Taxes by the Loan Parties. The Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law or timely reimburse the Administrative Agent or the Collateral Agent for the payment of any Other Taxes they were required to pay by law or by a relevant Governmental Authority in respect of this Agreement.
(c)Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes by any Loan Party to a Governmental Authority, such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
(d)Indemnification by the Loan Parties. Each applicable Loan Party shall indemnify each Recipient for the full amount of any Indemnified Taxes that are paid or payable by such Recipient in connection with any Loan Document (including Indemnified Taxes imposed or asserted on amounts paid or payable under this Section 3.4(d)) and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this
Section 3.4(d) shall be paid within 10 days after demand therefor. A certificate as to the amount of such payment or liability delivered to the applicable Loan Party by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error.
(e)Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent and the Collateral Agent for any Taxes (but, in the case of any Indemnified Taxes, only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so) attributable to such Lender that are paid or payable by the Administrative Agent or the Collateral Agent in connection with any Loan Document and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. The indemnity under this Section 3.4(e) shall be paid within 10 days after demand therefor. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive
absent manifest error. Each Lender hereby authorizes the Administrative Agent and the Collateral Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent or the Collateral Agent (as applicable) to the Lender from any other source against any amount due to the Administrative Agent or the Collateral Agent (as applicable) under this paragraph (e).
(f)Status of Lenders. (i) Any Lender that is entitled to an exemption from, or reduction of, any applicable withholding Tax with respect to any payments under any Loan Document shall deliver to the Company and the Administrative Agent, at the time or times reasonably requested by the Company or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Company or the Administrative Agent as will permit such payments to be made without, or at a reduced rate of, withholding. In addition, any Lender, if reasonably requested by the Company or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Company or the Administrative Agent as will enable the Company or the Administrative Agent to determine whether or not such Lender is subject to any withholding (including backup withholding) or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.4(f)(ii)(A) through (E) and Section 3.4(f)(iii) below) shall not be required if in the Lender’s judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
(viii)Without limiting the generality of the foregoing, if the Company is a U.S. Person, each Lender shall, if it is legally eligible to do so, deliver to the Company and the Administrative Agent (in such number of copies reasonably requested by the Company and the Administrative Agent) on or prior to the date on which such Lender becomes a party hereto, duly completed and executed copies of whichever of the following is applicable:
(A)in the case of a Lender that is a U.S. Person, IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding tax;
(B)in the case of a Non-U.S. Lender claiming the benefits of an income tax treaty to which the United States is a party (1) with respect to payments of interest under any Loan Document, IRS Form W- 8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such tax treaty and (2) with respect to any other applicable payments under this Agreement, IRS Form W-8BEN or W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other
income” article of such tax treaty;
(C)in the case of a Non-U.S. Lender for whom payments under this Agreement constitute income that is effectively connected with such Lender’s conduct of a trade or business in the United States, IRS Form W-8ECI;
(D)in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code both (1) IRS Form W-8BEN or W-8BEN-E, as applicable, and (2) a certificate substantially in the form of Exhibit D attached hereto (a “U.S. Tax Certificate”) to the effect that such Lender is not (a) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (b) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code and (c) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code;
(E)in the case of a Non-U.S. Lender that is not the beneficial owner of payments made under any Loan Document (including a partnership or a participating Lender) (1) an IRS Form W-8IMY on behalf of itself and (2) the relevant forms prescribed in clauses (A), (B), (C), (D) and (F) of this paragraph (f)(ii) and in paragraph (f)(iii) that would be required of each such beneficial owner or partner of such partnership if such beneficial owner or partner were a Lender; provided, however, that if the Lender is a partnership and one or more of its partners are claiming the exemption for portfolio interest under Section 881(c) of the Code, such Lender may provide a U.S. Tax Certificate on behalf of such partners; or
(F)in the case of a Non-U.S. Lender, any other form prescribed by applicable law as a basis for claiming exemption from, or a reduction of, U.S. Federal withholding Tax together with such supplementary documentation necessary to enable the Company or the Administrative Agent to determine the amount of Tax (if any) required by law to be withheld or deducted.
(ix)If a payment made to a Lender under any Loan Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Company and the Administrative Agent, at the time or times prescribed by law and at such time or times reasonably requested by the Company or the Administrative Agent, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company and the Administrative Agent as may be necessary for the
Company and the Administrative Agent to comply with their obligations under FATCA, to determine that such
Lender has or has not complied with such Lender’s obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 3.4(f)(iii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(x)Without limiting the generality of the foregoing, in the case of a Non-Spanish Lender, as soon as reasonably practicable after the date on which it becomes a Lender, but before any payment of interest is due or made by a Spanish Guarantor, whichever comes first, such Lender shall deliver to such Spanish Guarantor through the Company and the Administrative Agent a certificate of tax residence (or the specific form required under the relevant Spanish Treaty) duly issued by the competent tax authorities of its country of tax residence evidencing such Lender as resident for tax purposes in that country and, if the Lender is a Spanish Treaty Lender, accrediting such Spanish Treaty Lender as tax resident in the relevant jurisdiction within the meaning of the relevant Spanish Treaty. Each Non-Spanish Lender shall be required to deliver a new certificate of tax residence upon expiry of the existing certificate in accordance with the applicable Spanish legislation.
Each Lender agrees that if any form or certification it previously delivered becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Company and the Administrative Agent in writing of its legal inability to do so.
(g)Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.4 (including additional amounts paid pursuant to this Section 3.4), it shall pay to the indemnifying party an amount equal to such refund (but only to the extent of indemnity payments made under this Section 3.4 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including any Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid to such indemnified party pursuant to the previous sentence (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this Section 3.4(g), in no event will any indemnified party be required to pay any amount to any indemnifying party pursuant to this Section 3.4(g) if such payment would place such indemnified party in a less favorable position (on a net after-Tax basis) than such indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld, or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This Section 3.4(g) shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the indemnifying party or any other Person.
(h)Survival. Each party’s obligations under this Section 3.4 shall survive the resignation of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all other obligations under any Loan Document.
(i)Mitigation Obligations of Loan Parties. If any payment to be made by a Guarantor would be subject to a Tax that is not an Indemnified Tax and such payment, if made by one or more other Guarantor, would not be subject to such Tax, the Borrower shall use commercially reasonable best efforts to cause the payment to be made by one of such other Guarantors in order to reduce or eliminate the non-Indemnified Taxes applicable to such payment.
3.5.Mitigation Obligations; Replacement of Lenders.
(q)If any Recipient requests compensation under Section 3.2, or if a Loan Party is required to pay any additional amount to any Recipient or any Governmental Authority for the account of any Recipient pursuant to Section 3.4 or if any amount payable under a Loan Document by a Loan Party becomes not deductible from that Loan Party’s taxable income for French tax purposes by reason of that amount being (i) paid or accrued to a Credit Party incorporated, domiciled, established or acting through a lending office situated in a Non-Cooperative Jurisdiction or (ii) paid to an account opened in the name of or for the benefit of that Credit Party in a financial institution situated in a Non-Cooperative Jurisdiction, then such Recipient shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Recipient, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.2 or 3.4, as the case may be, in the future and (ii) would not subject such Recipient to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Recipient. The Loan Party hereby agrees to pay all reasonable costs and expenses incurred by any Recipient in connection with any such designation or assignment including the $3,500 fee contemplated by Section 13.1(b).
(r)If any Lender (i) shall become affected by any of the changes or events described in Section 3.2 or 3.4 and the Loan Party is required to pay additional amounts or make indemnity payments with respect to the Lender thereunder, (ii) is a Defaulting Lender, (iii) [reserved], or (iv) has failed to consent to a proposed amendment, waiver,
discharge or termination which pursuant to the terms of Section 8.2 or any other provision of any Loan Document requires the consent of all Lenders or all affected Lenders (or as applicable, with respect to a Class, all Lender or all affected Lenders of such Class) and with respect to which the Required Lenders (or, as applicable with respect to a Class, the Lenders that would constitute the Required Lenders if such Class were the only Class outstanding hereunder) shall have granted their consent (any such Lender being hereinafter referred to as a “Departing Lender”), then in such
case, the Loan Party may, upon at least five Business Days’ notice to the Administrative Agent and such Departing Lender (or such shorter notice period specified by the Administrative Agent), designate a replacement lender reasonably acceptable to the Administrative Agent (a “Replacement Lender”) to which such Departing Lender shall, subject to its receipt (unless a later date for the remittance thereof shall be agreed upon by the Loan Party and the Departing Lender) of all amounts then owed to such Departing Lender under Sections 3.2 or 3.4, if any, assign all (but not less than all) of its interests, rights, obligations, Loans and Commitments hereunder; provided, that the Departing Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Replacement Lender (to the extent of such outstanding principal and accrued interest and fees) or the Loan Party (in the case of all other amounts). Upon any assignment by any Lender pursuant to this Section 3.5 becoming effective, the Replacement Lender shall thereupon be deemed to be a “Lender” for all purposes of this Agreement (unless such Replacement Lender was, itself, a Lender prior thereto) and such Departing Lender shall thereupon cease to be a “Lender” for all purposes of this Agreement and shall have no further rights or obligations hereunder (other than pursuant to Section 3.2 or 3.4 and Section 10.6).
(s)Notwithstanding any Departing Lender’s failure or refusal to assign its rights, obligations, Loans and Commitments under this Section 3.5, the Departing Lender shall cease to be a “Lender” for all purposes of this Agreement and the Replacement Lender shall be substituted therefor upon payment to the Departing Lender by the Replacement Lender of all amounts set forth in paragraph (b) of Section 3.5 without any further action of the Departing Lender.
ARTICLE IV CONDITIONS PRECEDENT
4.2.Closing Date. This Agreement shall become effective and the obligations of the Lenders to make the Term Loans hereunder shall become effective on the date on which each of the following conditions is satisfied (or waived in accordance with Section 8.2):
(t)The Administrative Agent shall have received (i) a counterpart of this Agreement signed by the Company and the Lenders, or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission of a signature page of this Agreement and the Guaranty) that such party has signed a counterpart of such the Agreement.
(u)The Administrative Agent shall have received copies of the articles of incorporation, partnership agreement or similar organizational documents of the Company and each Guarantor as of the Closing Date, together with all amendments thereto, and a certificate of good standing or similar governmental evidence of corporate existence (to the extent applicable), certified by the Secretary or an Assistant Secretary or other duly authorized director or representative of the Company or such Guarantor, as the case may be.
(v)The Administrative Agent shall have received copies of the by-laws or other similar operating
agreement (to the extent applicable) and resolutions of the shareholders and/or Board of Directors’ resolutions (and resolutions of other bodies, if any are reasonably deemed necessary by counsel for the Administrative Agent), of the Company and each Guarantor (in respect of any Guarantor incorporated under the laws of Spain raised to the status of a Spanish Public Document) authorizing the execution and performance of the Loan Documents, certified by the Secretary or an Assistant Secretary or other duly authorized representative of the Company or such Guarantor, as the case may be.
(w)The Administrative Agent shall have received an incumbency certificate of the Company and each Guarantor, which shall identify by name and title and bear the signature of the officers of the Company or such Guarantor authorized to sign the applicable Loan Documents and to make borrowings hereunder, upon which certificate the Administrative Agent and the Lenders shall be entitled to rely until informed of any change in writing by the Company or such Guarantor.
(x)The Administrative Agent shall have received a customary written opinion or opinions of Sullivan & Cromwell LLP, as New York counsel for the Loan Parties, Jones Day, as Ohio counsel for the Loan Parties, McMillan LLP, as Canadian counsel for the Loan Parties, Sullivan & Cromwell LLP, as German counsel for the Loan Parties, Ashurst LLP, as German counsel for the Secured Parties, Ashurst LLP, as Belgian counsel for the Secured Parties, Jones Day as Belgian counsel for the Loan Parties, Sullivan & Cromwell LLP, as French counsel for the Loan Parties (capacity opinion), Ashurst LLP, as French counsel for the Secured Parties, Stibbe London B.V., as Dutch counsel for the Secured Parties, Ashurst LLP, as Italian counsel for the Secured Parties, Jones Day as Italian counsel for the Loan
Parties, Jones Day as Spanish counsel for the Loan Parties, Schoenherr Halwa sp.k.,, as Polish counsel for the Secured Parties, Advokatfirmaet Schjødt AS, filial as Swedish counsel for the Secured Parties and Ashurst LLP, as English counsel for the Secured Parties, addressed to the Administrative Agent, the Collateral Agent and Lenders and dated as of the Closing Date, in form and substance customary for transactions of this type.
(y)The Collateral and Guarantee Requirements shall have been satisfied; provided that to the extent that the Collateral and Guarantee Requirements (other than the execution of the Security Documents and the Guaranty, delivery of Uniform Commercial Code or PPSA financing statements with respect to perfection of security interests in all assets of the Loan Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA of any applicable jurisdiction, delivery of intellectual property security agreements in form for filing with the USPTO, USCO and the Canadian Intellectual Property Office and the delivery of possessory collateral) cannot be satisfied at closing, are not satisfied as of the Closing Date after the Company has used commercially reasonable efforts to do so, the satisfaction of such requirements shall not be a condition to the availability of the Term Loans on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 6.32 or, in each case, such later date as the Required Lenders may reasonably agree). The Collateral Agent shall have received (i) a completed Perfection Certificate dated the Closing Date and signed by an Authorized Officer of each of the Company and each Loan Party, together with all attachments contemplated thereby and (ii) results of (x) searches of the Uniform Commercial Code filings (or equivalent filings, including PPSA filings) and (y) bankruptcy, judgment, tax and intellectual property lien searches requested by the Administrative Agent, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or other documents) are permitted by hereunder or have been or will be released in connection with the funding of the Term Loans on the Closing Date.
(z)Subject to paragraph (f) above, each document (including any UCC, PPSA (or similar) financing statement and intellectual property security agreements and, with respect to Security Document governed by French law, certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Loan Party whose shares are pledged) required by any Security Document or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of the Collateral Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Security Document (unless such Security Document provides for any such requirement to be provided at a later point in time), shall be in proper form for filing, registration or recordation and the Administrative Agent have made arrangements for such filing, registration or recordation.
(aa)The Administrative Agent shall have received fully executed copies of each Intercreditor Agreement, the 2025 Notes Indenture, the New 2L Notes Indenture, the Superpriority Term Loan Facility, the Existing Term Loan Facility and the Amendments and the ABL Facility.
(ab)The Administrative Agent shall have received at least 3 Business Days prior to the Closing Date all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, requested by any Lender at least 10 Business Days prior to the Closing Date.
(ac)Payment of all fees, interest and other amounts due and payable as of the Closing Date from the Company and its Subsidiaries to the Administrative Agent, the Collateral Agent, the Arranger and the Lenders under the Loan Documents and pursuant to any fee or similar letters executed by the Company in connection herewith shall be paid, including reimbursement or payment of all out-of-pocket expenses required thereunder to be reimbursed or paid by the Company and its Subsidiaries, in each case solely to the extent invoiced in writing to the Company in reasonable detail at least two Business Days prior to the Closing Date; provided that this condition will be satisfied on the Closing Date prior to such payment if arrangements reasonably satisfactory to the Arranger, the Administrative Agent and the Lenders are in place at such time for the payment of such fees and expenses on the Closing Date.
(ad)(x) All the representations and warranties contained in Article V shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the Closing Date; provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided further that any representation and warranty that is qualified as to
“materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects and (y) no Default or Unmatured Default shall exist and be continuing or would result from the extensions of credit hereunder on the Closing Date.
(ae)No default or event of default shall have existing and be continuing under, and as defined in, the Transaction Support Agreement.
(af)No event or circumstance that, individually or in the aggregate with other events or circumstances, has had or would reasonably be expected to have a Material Adverse Effect (for purposes of this clause (m), under, and as defined in, the Transaction Support Agreement), shall have occurred since October 20, 2022.
(ag)[Reserved].
(ah)The Administrative Agent shall have received a certificate from the chief financial officer or treasurer of the Company in substantially the form of Exhibit E hereto certifying the solvency of the Company and its Subsidiaries on a consolidated basis immediately after giving effect to the transactions contemplated hereby to be consummated on the Closing Date.
(ai)The Administrative Agent shall have received a fully executed copy of the Subordination Agreement executed by all of the Loan Parties and any External Subsidiary which is a creditor to any Loan Party.
(aj)The consummation of the Revolver Exchange, the 2025 Consent Solicitation and the 2024 Consent Solicitation and Exchange Offer and the Term Loan Exchange substantially concurrently with the funding of the Loans on the Closing Date; provided that, in the case of the (x) Term Loan Exchange, the aggregate principal amount of Existing Term Loans exchanged shall not be lower than 95.0% (or a different amount mutually agreed by the Company and the Majority Consenting Parties (as defined in the Transaction Support Agreement)) of the aggregate principal amount of outstanding Existing Term Loans and (y) in the case of the 2024 Consent Solicitation and Exchange Offer, the aggregate principal amount of 2024 Notes that provide consents and exchange pursuant to the 2024 Consent Solicitation and Exchange Offer shall not be lower than 81.3%.
(ak)The Administrative Agent shall have received a certificate of each Loan Party, dated the Closing Date, with appropriate insertions or as otherwise customary in the relevant jurisdiction of incorporation of a Foreign Loan Party, executed by any Authorized Officer of such Loan Party, and including or attaching the documents referred to in clauses (b) through (d) of this Section and, in the case of the certificate delivered by the Company, confirming compliance with the conditions set forth in paragraph (k), (l) and (m) of this Section 4.1.
(al)Receipt of customary evidence of: (1) the acceptance and cancellation of the 2024 Notes tendered in exchange for the New 2L Notes, (2) the issuance of the New 2L Notes, (3) the effectiveness of the Amendments and
(4) the funding of the Superpriority Term Loans.
(am)The Initial New Term Loan Paydown shall have been consummated.
(an)The Administrative Agent shall have received in relation to the Polish Loan Party: a certificate from the social security office, relevant tax authorities and municipality office confirming that there are no outstanding payments from a Polish Loan Party issued no more than 60 days before the Closing Date, or confirmation that that Polish Loan Party is not registered as a social security payer; and a certificate issued by the registry of registered pledges and registry of treasury pledges, respectively, of no prior registration of, or pending application for registered pledge or treasury pledge over any assets of that Polish Loan Party or shares in that Polish Loan Party.
(ao)With respect to a Dutch Loan Party, the Administrative Agent shall have received either (i) a positive or neutral advice (advies) from the works council of the Dutch Loan Party, which, if conditional, contains conditions which are acceptable to the Administrative Agent, including the request for advice or (ii) a confirmation of the board of directors (or equivalent) of such Dutch Loan Party that no works council (ondernemingsraad) having jurisdiction over such Dutch Loan Party has been installed and that there is no works council having jurisdiction over the transactions contemplated by the Loan Documents.
(ap)With respect to a Polish Loan Party, the Administrative Agent shall have received (i) a copy of the articles of association (umowa/statut spółki) of that Polish Loan Party and (ii) an electronic extract from the national commercial register (Krajowy Rejestr Sądowy) in respect of that Polish Loan Party.
(aq)In respect of any Guarantor incorporated under the laws of Spain, the Administrative Agent shall have received a copy of an updated certificate (certificación literal) issued by the relevant Mercantile Registry, certifying the updated version of their by-laws, the composition of its governing body, that it is validly incorporated in Spain and is not under an insolvency proceeding and they have not adopted any agreement to be dissolved and/or liquidated; and to the extent the issued certificate of any Guarantor incorporated under the laws of Spain does not contain all such up-to date corporate information, supplementing it with copies of any public documents that have been granted and are pending registration with the Mercantile Registry (if any) or have been registered with the Mercantile Registry but are not reflected in the delivered certification (if any).
(ar)In respect each Guarantor incorporated under the laws of Germany, the Administrative Agent shall have received (i) up to date copies of the commercial register extracts (Handelsregisterauszüge), (ii) up to date copies of lists of shareholders (Gesellschafterlisten) as published in the commercial register, and (iii) up to date copies of the articles of associations (Satzung) and any by-laws (Geschäftsordnungen) (if any).
(as)In relation to an Italian Guarantor, the Administrative Agent shall have received copies of the articles of incorporation (atto costitutivo and statuto) and a certificato di iscrizione dated not earlier than 5 Business Days from the date of execution of this Agreement.
(aa) In respect of a Belgian Guarantor, the Administrative Agent shall have received (i) a copy of its deed of incorporation (oprichtingsakte/acte constitutive), (ii) a copy of the coordinated articles of association (gecoördineerde statuten/statuts coordonnés), (iii) a copy of an extract of the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen/Banque-Carrefour des Entreprises) dated no earlier than the day falling 5 Business Days before the date of this Agreement, and (iv) a copy of a non-insolvency certificate from the clerk’s office of the relevant Enterprise Court dated no earlier than the day falling 5 Business Days before the date of this Agreement.
(bb) With respect to a French Loan Party, the Collateral Agent shall have received (i) a copy of the certificate of incorporation (extrait k-bis), (ii) a copy of the solvency certificate (certificate de non-faillite), (iii) a copy of the lien searches (état des inscriptions et des privilèges), each dated no earlier than fifteen (15) Business Days. Original copies of such documents will be provided after the Closing Date to the Collateral Agent and the Collateral Agent shall have received fully executed copies of the French Collateral Documents. With respect to Security Documents governed by French law, the Collateral Agent shall have received certified electronic copies of the share transfer registers (registres de mouvements de titres) and individual shareholders’ accounts (comptes individuels d’actionnaires) of the French Loan Party whose shares are pledged.
(cc) The Administrative Agent shall have received evidence satisfactory to it that Dalriada Trustees Limited, in its capacity as trustee of the Wincor Nixdorf Defined Benefit Pension Scheme, has confirmed in writing to Diebold Nixdorf (UK) Limited its non-objection to the Transactions and to Diebold Nixdorf (UK) Limited’s participation in the Transactions.
(dd) The “Transactions” (as defined in the Transaction Support Agreement) shall have been consummated in accordance with the terms of the Transaction Support Agreement.
(ee) All fees and expenses required to be paid to the “Ad Hoc Group Advisors” and the “Term Loan Group Advisors” (each as defined in the Transaction Support Agreement) under the terms of their respective fee and/or engagement letters or the Transaction Support Agreement shall have been paid.
For purposes of determining compliance with the conditions specified in this Section 4.1, each Lender that has signed this Agreement (and each prospective Lender participating in the primary syndication of the Loans) shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender or prospective Lender prior to the proposed Closing Date specifying its objection thereto. In addition, each Lender that has executed a Lender Consent (Dollar Term B Loan) and/or Lender Consent (Euro Term B Loan), in each case that is attached to Twelfth Amendment to Existing Term Loan Facility as Annex I-A and Annex 1-B, respectively, thereto, shall be deemed to be a Dollar Term Lender and/or Euro Term Lender (as applicable) hereunder as if such Lender had duly executed a counterpart signature page hereto, and Section 4.1(a)(i) shall be deemed satisfied upon the execution and delivery by such Lender of the applicable Lender Consent to the Administrative Agent.
ARTICLE V REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lenders and the Agents on the Closing Date and each other date such representations and warranties are made pursuant to the Loan Documents, that:
5.29.Corporate Existence and Standing. The Company, each Loan Party and, other than as would not reasonably be expected to have a Material Adverse Effect, each of their Subsidiaries is a corporation, partnership, limited liability company, unlimited liability company or other organization, duly organized and validly existing under the laws of its jurisdiction of organization and has all requisite corporate, partnership, company or similar authority to conduct its business as presently conducted (in each case, in the case of Foreign Subsidiaries, to the extent such legal concepts are applicable thereto).
5.30.Authorization and Validity. Each Loan Party has the corporate or other power and authority and legal right to execute and deliver the Loan Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by each Loan Party of the Loan Documents to which it is a party and the performance of its obligations thereunder have been duly authorized by proper corporate or other applicable company proceedings. Each Loan Document has been duly executed and delivered on behalf of each Loan Party party thereto. Each Loan Document constitutes a legal, valid and binding obligation of each Loan Party party thereto, enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
5.31.No Conflict; Government Consent. Neither the execution and delivery by the Loan Parties of the Loan Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Company or any of its
Subsidiaries or the Company’s or any Subsidiary’s constitutive documents or the provisions of any material indenture, instrument or agreement to which the Company or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than any Lien permitted by Section 6.16) in, of or on the Property of the Company or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. Other than those that have been obtained, no order, consent, approval, license, authorization, or validation of, or filing, recording or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, any of the Loan Documents.
5.32.Financial Statements. The Company has heretofore furnished to the Lenders the Company’s consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2021, reported on by KPMG, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2022.
All financial statements of the Company and its Subsidiaries delivered to the Administrative Agent pursuant to clause (i) or
(ii) of Section 6.1 or Article IV on and after the Closing Date were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present in all material respects the consolidated financial condition and operations of the Company and its Subsidiaries (other than in the case of annual financial statements, subject to the absence of footnotes and year-end audit adjustments).
5.33.Material Adverse Change. Since the Closing Date, there has been no change in the business, Property, operations or condition (financial or otherwise) of the Company and its Subsidiaries, taken as a whole, which could reasonably be expected to have a Material Adverse Effect.
5.34.Taxes. Each of the Company and each of the Company’s Subsidiaries has filed all United States federal tax returns and all other tax returns that are required to be filed with any Governmental Authority and has paid all Taxes required to be paid by it, except (i) such Taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP and as to which no Lien (other than as permitted by Section 6.16) exists or (ii) where the failure to do so could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. No tax Liens have been filed and no claims are being asserted with respect to any such Taxes, other than as permitted by Section 6.16.
5.35.Litigation and Guarantee Obligations. Except as set forth on Schedule 5.7 hereto, there is no litigation, arbitration or proceeding pending or, to the knowledge of any of the Company’s executive officers, any governmental investigation or inquiry pending or any litigation, arbitration, governmental investigation, proceeding or inquiry threatened in writing against or affecting the Company or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of the Loans or Advances. Other than any liability incident to such litigation, arbitration or proceedings listed on Schedule 5.7, the Company and its Subsidiaries have no material Guarantee Obligations not provided for or disclosed in financial statements referred to in Section 5.4 that could reasonably be expected to have a Material Adverse Effect.
5.36.Subsidiaries. Schedule 5.8 hereto contains an accurate list of all Subsidiaries of the Company as of the Closing Date, setting forth their respective jurisdictions of incorporation or organization and the percentage of their respective Capital Stock owned by the Company or other Subsidiaries. All of the issued and outstanding shares of Capital Stock of such Subsidiaries held by the Company have been duly authorized and issued and are fully paid and non-assessable (to the extent such concepts are applicable).
5.37.ERISA; Canadian Pension Plans; UK and Other Pension Schemes. Except where noncompliance could not reasonably be expected to have a Material Adverse Effect, each member of the Controlled Group has fulfilled its obligations under the minimum funding standards of ERISA and the Code with respect to each Plan. Each Plan is in compliance with the applicable provisions of ERISA and the Code except where such non-compliance could not reasonable be expected to have a Material Adverse Effect. Except as could not reasonably be expected to have a Material Adverse Effect, no Reportable Event which has or may result in any liability has occurred with respect to any Plan, and no member of the Controlled Group has withdrawn (completely or partially) from any Multiemployer Plan. No member of the Controlled Group has (i) filed an application for the waiver of the minimum funding standards under Section 412 of the Code or Section 302 of ERISA with respect to any Plan, (ii) made an amendment to a Plan that could result in the posting of a bond or other security under
Section 436(f)(1) of the Code having a value individually or collectively in excess of $50,000,000 or (iii) incurred any liability under Title IV of ERISA that could reasonably be expected to have a Material Adverse Effect, other than a liability to the PBGC for premiums due but not delinquent under Section 4007 of ERISA or a liability that has been satisfied. No Foreign Plan Event has occurred that could reasonably be expected to have a Material Adverse Effect. No Lien has been imposed upon any Loan Party pursuant to Section 430(k) of the Code or Section 303(k) of ERISA. No Loan Party maintains, sponsors, administers, contributes to, participates in or has any liability in respect of any Canadian Defined Benefit Plan, nor has any such Person ever maintained, sponsored, administered, contributed or participated in any Canadian Defined Benefit Plan. Any and all Canadian
Pension Plans are duly registered under the Income Tax Act (Canada) and any other applicable laws which require registration, have been administered in accordance with the Income Tax Act (Canada) and such other applicable law and no event has occurred which could cause the loss of such registered status. All obligations of the Loan Parties (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans and the funding agreements relating thereto have been performed on a timely basis. All contributions or premiums required to be made or paid by the Loan Parties and their Subsidiaries to the Canadian Pension Plans have been made on a timely basis in accordance with the terms of such plans and all applicable laws. No Lien has arisen, choate or inchoate, in connection with any Canadian Pension Plan (save for contribution amounts not yet due). No Canadian Pension Event has occurred that could reasonably be expected to have a Material Adverse Effect. Except for the Wincor Nixdorf Defined Benefit Pension Scheme, neither the Company nor any of its Subsidiaries is or has at any time been an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pensions Schemes Act 1993 (UK)) and neither the Company nor any of its Subsidiaries is or has at any time been “connected” with or an “associate” of (as those terms are used in sections 38 and 43 of the Pensions Act 2004 (UK)) such an employer. All pension schemes operated by or maintained for the benefit of any Loan Party and/or any of their respective employees have been contributed to to the extent required by applicable local law and regulation where the failure to do so has or is reasonably likely to have a Material Adverse Effect.
5.38.Accuracy of Information. No information, exhibit or report furnished by the Company or any of its Subsidiaries in writing to the Administrative Agent or to any Lender in connection with the negotiation of the Loan Documents contain, when taken as a whole, any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, as of the date thereof; provided, however, that with respect to projected financial information and information of a general economic or industry specific nature, the Company represents only that such information has been prepared in good faith based on assumptions believed by the Company to be reasonable.
5.39.Regulations T, U and X. Neither the Company nor any of its Subsidiaries extends or maintains, in the ordinary course of business, credit for the purpose, whether immediate, incidental, or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any Advance will be used for the purpose, whether immediate, incidental, or ultimate, of buying or carrying any such Margin Stock or maintaining or extending credit to others for such purpose in any way that would violate Regulation T, U or X. After applying the proceeds of each Advance, Margin Stock will not constitute more than 25% of the value of the assets (either of the Company alone or of the Company and its Subsidiaries on a consolidated basis) that are subject to any provisions of any Loan Document that may cause the Advances to be deemed secured, directly or indirectly, by Margin Stock. The Company and its Subsidiaries are in compliance with Section 6.2.
5.40.[Reserved].
5.41.Compliance With Laws; Properties. The Company and its Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective Property, failure to comply with which could reasonably be expected to have a Material Adverse Effect.
5.42.Plan Assets; Prohibited Transactions. No Loan Party has engaged in any non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code which could reasonably be expected to have a Material Adverse Effect.
5.43.Environmental Matters. The Company and its Subsidiaries are not and have not been in violation of any Environmental Laws in such a fashion that could reasonably be expected to have a Material Adverse Effect. Neither the Company nor any Subsidiary has received any written notice regarding liabilities under or compliance with Environmental Laws or are the subject of any litigation, arbitration, governmental investigation, proceeding or inquiry related to Environmental Laws, Hazardous Substances or Remedial Action, except in each case as would not reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, neither the Company nor any Subsidiary has incurred any Environmental Liability.
5.44.Investment Company Act. No Loan Party is an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.
5.45.Intellectual Property Matters. Except as would not reasonably be expected to have a Material Adverse Effect or as set forth in Schedule 5.17, (a) the Company and each of its Subsidiaries own, or possess the valid license or legal right to use, all intellectual property used in, held for use in or necessary for the conduct of the respective businesses of the Company and its Subsidiaries, free and clear of all Liens other than Liens permitted by Section 6.16, (b) none of the Company or its Subsidiaries are infringing upon, misappropriating or otherwise violating any intellectual property of any person, and there are no claims or litigation pending or, to the knowledge of the Loan Parties, threatened against the Company or any of its Subsidiaries alleging the foregoing and (c) there are no claims or litigation pending or, to the knowledge of the Loan Parties, threatened by or against the Company or any of its Subsidiaries relating to any of the intellectual property owned by the Company or any of its Subsidiaries.
5.46.Insurance. The Company and its Subsidiaries maintain insurance with financially sound and reputable insurance companies (or self-insurance programs) on their Property in such amounts (with such customary deductibles, exclusions and self- insurance) and covering such risks as management of the Company reasonably considers consistent with sound business practice.
5.47.Ownership of Properties. On the Closing Date, the Company and its Subsidiaries will have good and marketable fee simple to, or a valid leasehold interest in, all of its real property, including the Mortgaged Properties, and all Property and assets reflected in their financial statements for such date as owned, leased or otherwise held by them, free and clear of all Liens, other than Liens permitted by Section 6.16.
5.48.Labor Controversies. There are no labor controversies pending or, to the best of the Company’s knowledge, threatened against the Company or any Subsidiary, that could reasonably be expected to have a Material Adverse Effect.
5.49.Burdensome Obligations. The Company does not presently anticipate that future expenditures needed to meet the provisions of federal or state statutes, orders, rules or regulations will be so burdensome as to cause a Material Adverse Effect.
5.50.Patriot Act. None of the Company or its Subsidiaries is in violation, in any material respect, of any applicable law primarily relating to counter-terrorism including, without limitation, the United States Executive Order No. 13224 on Terrorist Financing, effective September 24, 2011, and the Patriot Act.
5.51.Anti-Corruption Laws and Sanctions. The Loan Parties have implemented, maintain in effect and enforce policies and procedures designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with applicable Anti-Corruption Laws and applicable Sanctions, and the Company, its Subsidiaries and their respective officers and employees (in their respective capacities as such), and to the knowledge of the Company, its directors and agents (in their respective capacities as such), are in compliance with applicable Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Company, any Subsidiary or any of their respective officers or employees, or (b) to the knowledge of the Company, any director or agent of the Company or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person. No Advance, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or Sanctions. The foregoing representations given in this section shall not apply to any party hereto (A) to which the Blocking Regulation applies, if and to the extent that such representations are or would be unenforceable by or in respect of that party pursuant to, or would otherwise result in a breach and/or violation of, (i) any provision of the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the European Union), (ii) any similar blocking or anti- boycott law in the United Kingdom or (iii) Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung).
5.52.Perfection, Etc.
5.24.1On and after the Closing Date, the Security Documents are effective to create in favor of the Collateral Agent for its benefit and the ratable benefit of the Secured Parties a legal, valid, and enforceable (subject to applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity) Lien (subject to Liens permitted by Section 6.16) on the Collateral as security for the relevant Obligations, and when (i) financing statements and other filings in appropriate form are filed, (ii) intellectual property security agreements are filed with and recorded by the United States Patent and Trademark Office, the United States Copyright Office, or any foreign counterparts of the foregoing, as applicable, and (iii) upon the taking of possession or control by the Collateral Agent (acting at the direction of the Required Lenders) of the Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Collateral Agent to the extent possession or control by the Collateral Agent is required by the applicable Security Document), the Liens created by the Security Documents shall constitute fully perfected first priority Liens (subject to Liens permitted by Section 6.16) on, and security interests in, all right, title and interest of the grantors in the Collateral to the extent perfection is required in accordance with the terms of the Security Documents (other than such Collateral in which a security interest cannot be perfected (x) under the UCC as in effect at the relevant time in the relevant jurisdiction by the filing of a financing statement, (y) possession or control by the secured party, or (z) through filings with the United States Patent and Trademark Office, the United States Copyright Office, or any foreign counterparts of the foregoing, as applicable), in each case subject to (i) no Liens other than Liens permitted under the Credit Documents and (ii) the terms of the Intercreditor Agreement.
5.24.2Each Security Document (other than Mortgages or any other registrable Spanish Collateral Documents) delivered pursuant to Section 6.9 will, upon execution and delivery thereof, be effective to create in favor of the Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the applicable Collateral described therein, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable law, (ii) upon the taking of possession or control by the Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Applicable Collateral Agent to the extent required by any Collateral Document) and (iii) solely to the extent required by applicable local law, any notices to shareholders, account banks or other third parties have been made or, in the case of any Polish Collateral Documents, any motions, notices, filings or acknowledgements made under or in connection with any Polish Collateral Documents have been filed, dispatched or made on terms specified in respective Polish Collateral Document or respective provisions of Polish law, such
Security Document will constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in such Collateral (to the extent intended to be created thereby and required to be perfected under the Loan Documents), in each case subject to no Liens other than the Liens permitted under the Loan Documents.
5.1.1Each Mortgage and any other registrable Spanish Collateral Documents delivered pursuant to Section 6.9 will be in a form that, when duly executed and delivered (and, when required under the relevant law, registered in the relevant registry), will be effective to create, in favor of the Collateral Agent, for its benefit and the benefit of the Secured Parties,
legal, valid and enforceable Liens on, and security interests in, all of the Loan Parties’ right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, subject only to Liens permitted by Section 6.16, and when such Mortgage is duly executed and delivered and properly filed (together with all other necessary filings, if any, in appropriate form) in the applicable office specified in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Section 6.9, such Mortgage shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Loan Parties in the Mortgaged Property contemplated thereby and the proceeds thereof, in each case prior and superior in right to any other Person, other than Liens permitted by Section 6.16.
5.1.2Each Collateral Document not described in this Section 5.24 creates valid security interests in, and Liens on, the Collateral covered thereby, which security interests and Liens will be, upon the taking of all required perfection actions in each applicable jurisdiction and, except to the extent otherwise expressly provided for herein or in the Security Documents, perfected security interests and Liens, prior to all other Liens (other than Liens permitted by Section 6.16 having priority over the Liens of the Collateral Agent (subject to any applicable Intercreditor Agreement)).
5.53.Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date, as applicable (i) each of the Fair Value and the Present Fair Salable Value of the assets of the Company and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Company and its Subsidiaries taken as a whole Do Not Have Unreasonably Small Capital; and (iii) the Company and its Subsidiaries taken as a whole Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature.
For the purposes hereof, (a) the term “Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of the Company and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act; (b) the term “Present Fair Salable Value” means the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Company and its Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated; (c) the term “Stated Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Company and its Subsidiaries taken as a whole, as of the applicable date, after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement and the making of the Term Loans), determined in
accordance with GAAP consistently applied; (d) the term “Identified Contingent Liabilities” means the maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement and the making of the Term Loans) (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Company, (e) the term “Can Pay Their Stated
Liabilities and Identified Contingent Liabilities as they mature” means that the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement and the making of the Term Loans) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable; and (f) the term “Do Not Have Unreasonably Small Capital” means the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement and the making of the Loans) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
5.54.Segregation of Assets Under the Italian Civil Code.
(a)No Italian Guarantor may segregate assets or revenues for the purpose of article 2447-bis, letter (a) or letter (b), of the Italian Civil Code, by creating any patrimono destinato ad uno specifico affare or incurring any finanziamento destinato ad uno specifico affare.
(b)No Italian Guarantor has created any patrimonio destinato ad uno specifico affare nor has incurred any
finanziamento destinato ad uno specifico affare pursuant to article 2447-bis and following of the Italian Civil Code.
5.55.Direction and Coordination Activity under Italian Civil Code. The Italian Guarantor is subject to the “attività di direzione e coordinamento” pursuant to art. 2497 and ff. of the Italian Civil Code of the Company.
5.56.DAC6. No transaction contemplated by the Loan Documents nor any transaction to be carried out in connection with any transaction contemplated by the Loan Documents meets any hallmark set out in Annex IV of DAC6.
ARTICLE VI
COVENANTS
On and after the Closing Date until the termination in full of the Commitments and payment in full of all Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted):
6.34.Financial Reporting. The Company will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, for the benefit of the Lenders (or in the case of clause (ix) below, the Lenders specified therein):
(i)Within 90 days (or such earlier date as the Company may be required to file its applicable annual report on Form 10-K by the rules and regulations of the SEC) after the close of each of its fiscal years, an audit report (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any such exception or qualification related to impending maturity of any Loans or Commitments under this Agreement, the Existing Term Loans or the 2024 Notes or a prospective breach of Section 6.33) certified by independent certified public accountants reasonably acceptable to the Administrative Agent, prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, related profit and loss statements, and a statement of cash flows, and if
available to the Company after the Company’s use of commercially reasonable efforts to so obtain, accompanied by a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Unmatured Default, or if, in the opinion of such accountants, any Default or Unmatured Default shall exist, stating the nature and status thereof.
(ii)Within 45 days (or such earlier date as the Company may be required to file its applicable quarterly report on Form 10-Q by the rules and regulations of the SEC) after the close of each of the first three quarterly periods of each fiscal year, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss statements and a consolidated unaudited statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by a Designated Financial Officer.
(iii)[Reserved].
(iv)Together with the financial statements required under Sections 6.1(i) or (ii), a compliance certificate in substantially the form of Exhibit F (a “Compliance Certificate”) signed by a Designated Financial Officer and stating that no Default or Unmatured Default exists, or if any Default or Unmatured Default exists, stating the nature and status thereof.
(v)Promptly and in any event within 30 Business Days after the Company knows that any Reportable Event has occurred with respect to any Plan or a Canadian Pension Event with respect to a Canadian Pension Plan (or such longer period as is acceptable to the Administrative Agent), a statement, signed by a Designated Financial Officer of the Company, describing said Reportable Event or Canadian Pension Event and the action which the Company proposes to take with respect thereto.
(vi)Promptly and in any event within 15 Business Days after receipt by the Company (or such longer period as is acceptable to the Administrative Agent), a copy of (a) any written notice or claim to the effect that the Company or any of its Subsidiaries is or may be liable to any Person as a result of the Release by the Company, any of its Subsidiaries, or any other Person of any Hazardous Substances into the environment, and (b) any written notice alleging any violation of any Environmental Law by the Company or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(vii)Promptly after the sending or filing thereof, copies of all reports, proxy statements and financial statements that the Company or any of its Subsidiaries sends to or files with any of their respective securities holders (other than the Company or another Subsidiary) or any securities exchange or the SEC pertaining to the Company or any of its Subsidiaries as the issuer of securities.
(viii)Such other information (including non-financial information) as the Administrative Agent or any Lender (through the Administrative Agent) may from time to time reasonably request.
(ix)Within 45 days after the end of each of the first two months of each of its fiscal quarters, to the Administrative Agent for distribution to the Lenders with access to the private-side agency intralinks or similar site, a year-over-year year to date profit and loss bridge and free cash flow schedule (which need not be prepared in accordance with GAAP).
Notwithstanding the foregoing clauses (i) and (ii) above, as to any information contained in materials furnished pursuant to clause (vii) above, the Company shall not be separately required to furnish such information under the clauses (i) or (ii) above, provided the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials
described in the above clauses (i) and (ii) above at the times specified therein. Materials required to be delivered pursuant to any of clauses (i) through (vii), inclusive, above (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet, and gives written notice thereof to the Administrative Agent; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), and the Administrative Agent shall have received written notice of such posting.
6.35.Sanctions. The Company will take actions designed to ensure compliance by the Company, its Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with Anti-Corruption Laws and Sanctions in all material respects. The foregoing clauses (B) and (C) of this Section 6.2(b) will not apply to any party hereto to which the Blocking Regulation applies, if and to the extent that such covenants are or would be unenforceable by or in respect of that party pursuant to, or would otherwise result in a breach and/or violation of, (A) any provision of the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the European Union) or (B) any similar blocking or anti-boycott law in the United Kingdom or (C) section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung).
6.36.Notice of Default. The Company will, and will cause its Subsidiaries to, after any senior officer of the Company has knowledge thereof, give prompt notice in writing to the Administrative Agent of the occurrence of (i) any Default or Unmatured Default or (ii) of any other development, financial or otherwise (including, without limitation, relating to any Plan, Multiemployer Plan, Canadian Pension Plan or Foreign Plan), which could reasonably be expected to have a Material Adverse Effect.
6.37.Conduct of Business. Neither the Company nor any of its Subsidiaries shall enter into any material business, either directly or through any Subsidiary, except for those businesses (a) in which the Company and its Subsidiaries are engaged on the date of this Agreement or (b) that are reasonably related, incidental, ancillary, complementary (including related, complementary, synergistic or ancillary technologies) or similar thereto, or a reasonable extension, development or expansion thereof. The Company will, and will cause each Subsidiary to do all things necessary to remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a corporation, partnership, limited liability company, unlimited liability company or other organizational form in its jurisdiction of incorporation or organization, as the case may be (unless, with respect to Subsidiaries, the failure to do so could not reasonably be expected to have a Material Adverse Effect), and maintain all requisite authority to conduct its business in each jurisdiction in which its business is conducted, unless the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.38.Taxes. The Company will, and will cause each Subsidiary to, timely file complete and correct United States federal and applicable foreign, state and local tax returns required by law and pay when due all Taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except (i) those that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with GAAP or IFRS, as applicable or (ii) where the failure to do so could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
6.39.Insurance. The Company will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance on all their Property in such amounts (with such customary deductibles, exclusions and self- insurance) and covering such risks as is consistent with sound business practice.
6.40.Compliance with Laws. The Company will, and will cause each Subsidiary to, comply with all Requirements of Law (including, without limitation, Environmental Laws), except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.
6.41.Properties; Inspection. The Company will, and will cause each Subsidiary to, do all things reasonably necessary to maintain, preserve, protect and keep its material Property in good repair, working order and condition, and make all necessary and proper repairs, renewals and replacements to the extent the Company reasonably deems consistent with sound business practice. The Company will, and will cause each Subsidiary to, permit representatives of the Agents (and through the Agents, the Lenders), to reasonably inspect any of the Property of the Company and each Subsidiary, the financial or accounting records of the Company and each Subsidiary and other documents of the Company and each Subsidiary, in each case only to the extent any of the foregoing is reasonably related to the credit evaluation by the relevant Agent and the Lenders under this Agreement, to examine and make copies of such records and documents of the Company and each Subsidiary, and to discuss the affairs, finances and accounts of the Company and each Subsidiary with, and to be advised as to the same by, their respective officers upon reasonable prior notice at such reasonable times and intervals as the relevant Agent may designate; provided that (x) other than after the occurrence and during the continuance of a Default, no more than one such inspection shall be conducted in any fiscal year and (y) only after the occurrence and during the continuance of a Default shall such inspections be at Company’s expense; provided further that all such inspection rights will be limited to the extent necessary for the Company and its Subsidiaries to comply with contractual confidentiality obligations not entered into by the Company or any of its Subsidiaries for the purpose of avoiding obligations under this Section 6.8. The Agents and the Lenders agree to use reasonable efforts to
coordinate and manage the exercise of their rights under this Section 6.8 so as to minimize the disruption to the business of the Company and its Subsidiaries resulting therefrom.
6.42.Collateral Matters; Further Assurances, Etc.
(a)On and after the Closing Date the Company will, and will, subject in the case of the Domestic Loan Parties to the Domestic Collateral and Guarantee Requirement and the Foreign Loan Parties to the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles, as applicable, cause each Subsidiary that is a Guarantor (including any Wholly Owned Subsidiaries required to enter into the Guaranty pursuant to Section 2.18), to execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements), which may be required under any applicable law, or which the Collateral Agent (acting at the direction of the Required Lenders) may reasonably request, to effectuate the transactions contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Security Documents or the validity or priority of any such Lien, all at the expense of the Company.
(b)On and after the Closing Date, with respect to any property (other than Excluded Assets and Foreign Excluded Assets) of the Company or any Guarantors as to which the Collateral Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Agent such amendments to the Security Documents or such other documents as the Collateral Agent (acting at the direction of the Required Lenders) deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest (subject to Liens permitted under Section 6.16) in such property, including the filing of Uniform Commercial Code and PPSA financing statements in such jurisdictions as may be required by the Security Documents or by law or as may be reasonably requested by the Collateral Agent (acting at the direction of the Required Lenders).
(c)On and after the Closing Date, with respect to any fee interest in any real property (together with improvements thereof) having a fair market value in the reasonable judgment of the Company of at least $10,000,000, except to the extent constituting Excluded Assets or Foreign Excluded Assets, within 90 days after the Closing Date or, if later, the acquisition thereof or joinder of the applicable Guarantor owning such property (or in each case such later date as agreed by the Collateral Agent), (i) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (ii) if reasonably requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount equal to the fair market value referred to above (but in no event less that the purchase price of such real property), or such other amount as shall be reasonably specified by the Collateral Agent acting at the direction of the Required Lenders), which title insurance shall contain such endorsements and affirmative coverage as may be reasonably requested by the Collateral Agent and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent, (iii) if requested by the Collateral Agent (acting at the direction of the Required Lenders), a current ALTA survey of such real property, together with a surveyor’s certificate, (iv) if requested by the Collateral Agent (acting at the direction of the Required Lenders), deliver to the Collateral Agent legal opinions of local counsel and counsel in the jurisdiction where the relevant Guarantor is organized relating to such matters as may be reasonably requested by the Collateral Agent (acting at the direction of the Required Lenders), which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent (acting at the direction of the Required Lenders), and
(v) if requested by the Collateral Agent (acting at the direction of the Required Lenders), provide a Phase I environmental assessment report for such property that is reasonably acceptable to the Collateral Agent (acting at the direction of the Required Lenders) in form and substance.
(d)On and after the Closing Date, with respect to any Subsidiary created or acquired by the Company or any Guarantor, within 45 days of such Person becoming a Subsidiary (or such later date as agreed by the Collateral Agent) (i) the Company shall take all actions (if any) to cause such Subsidiary (other than an Excluded Subsidiary) to comply with the Collateral and Guarantee Requirements, (ii) the Company shall, or shall cause the applicable Guarantor to, execute and deliver to the Collateral Agent such amendments to the Security Documents as the Collateral Agent (acting at the direction of the Required Lenders) deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest (subject to Liens permitted under Section 6.16) in the Capital Stock of such new Subsidiary that is owned by the Company or any Guarantor except to the extent such Capital Stock constitutes an Excluded Asset or Foreign Excluded Assets, and (iii) except to the extent constituting Excluded Assets or Foreign Excluded Assets, if such Capital Stock is certificated, deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Guarantor, as applicable.
(e)Notwithstanding anything to the contrary herein or in any other Loan Documents, if the Paderborn Property constitutes (or is required to constitute) collateral securing the Superpriority Term Loans, the Paderborn Property shall cease to be a Foreign Excluded Asset and shall be Collateral upon written notice from the Collateral
Agent (acting at the direction of the Required Lenders), and such real property shall be subject to Section 6.9(c) above as if such real property had been acquired on the date of such notification.
(f)MIRE Events. Each of the parties hereto acknowledges and agrees that, if there are any Mortgages, any increase, extension or renewal of any of the Commitments or Loans (including the provision of any incremental credit facilities hereunder, but excluding any continuation or conversion of Advances) may at the discretion of the Designated Lender be subject to (and conditioned upon): (1) the prior delivery of all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such Mortgages as required by Flood Insurance Regulations and as otherwise reasonably required by the Administrative Agent, the Collateral Agent (acting at the direction of the Required Lenders) or Designated Lender and (2) the Administrative Agent having received written confirmation from the Designated Lender (if any), flood insurance due diligence and flood insurance compliance has been completed thereby (such written confirmation not to be unreasonably withheld, conditioned or delayed).
(g)Flood Insurance. With respect to each Mortgage that is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” with respect to which flood insurance has been made available under Flood Insurance Regulations, the applicable Loan Party (A) has obtained and will maintain, with financially sound and reputable insurance companies (except to the extent that any insurance company insuring the Mortgage of the Loan Party ceases to be financially sound and reputable after the Closing Date, in which case, the Company shall promptly replace such insurance company with a financially sound and reputable insurance company), such flood insurance in such reasonable total amount as the Administrative Agent, the Collateral Agent (acting at the direction of the Required Lenders) and the Designated Lender may from time to time reasonably require, and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (B) promptly upon request of the Administrative Agent or the Designated Lender, will deliver to the Administrative Agent, the Collateral Agent or such Designated Lender, as applicable, evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent or such Designated Lender, including, without limitation, evidence of annual renewals of such insurance.
(h)Pledges of Mortgaged Property. Notwithstanding the foregoing or anything herein to the contrary, the Collateral Agent shall not enter into any Mortgage in respect of any real property located in the United States acquired by the Company or any other Loan Party after the Closing Date until (1) the date that occurs 30 days after the Administrative Agent has delivered to the Designated Lender (which may be delivered electronically) the following documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (x) if such real property is located in a “special flood hazard area”, (I) a notification to the Company (or applicable Loan Party) of that fact and (if applicable) notification to the Company (or applicable Loan Party) that flood insurance coverage is not available and (II) evidence of the receipt by the Company (or applicable Loan Party) of such notice; and
(y) if such notice is required to be provided to the Company (or applicable Loan Party) and flood insurance is available in the community in which such real property is located, evidence of required flood insurance and (2) the Administrative Agent shall have received written confirmation from the Designated Lender that flood insurance due diligence and flood insurance compliance has been completed by the Designated Lender (such written confirmation not to be unreasonably conditioned, withheld or delayed).
(i)Pensions.
(xi)Except for the Wincor Nixdorf Defined Benefit Pension Scheme, the Company shall ensure that no member of the Group is or has been at any time an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993 (UK)) or “connected” with or an “associate” of (as those terms are used in sections 38 or 43 of the Pensions Act 2004 (UK)) such an employer.
(xii)The Company shall ensure that all schedules of contributions in relation to pension schemes operated by or maintained for the benefit of the Company or any other Loan Party and/or any of their respective employees are complied with in accordance with each of the Company’s and the other Loan Parties’ legal and
contractual obligations and that no action or omission is taken by the Company or any other Loan Party in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse Effect.
(xiii)The Company shall deliver to the Administrative Agent at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to the Parent), actuarial reports in relation to the Wincor Nixdorf Defined Benefit Pension Scheme.
(xiv)The Company shall promptly notify the Administrative Agent of any material change in the rate of contributions to any pension schemes mentioned in paragraph (ii) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by law or otherwise).
(xv)The Company shall promptly notify the Administrative Agent of any investigation or proposed investigation to be carried out by or under the authority of any regulatory authority relating to any pension scheme which is mentioned in paragraph (ii) above. In addition, and without limiting the generality of the foregoing, the Company shall promptly notify the Administrative Agent if it or any of the other Loan Parties receives a Financial Support Direction or a Contribution Notice from the Pensions Regulator.
(j)Notwithstanding the foregoing or anything to the contrary herein or in any other Loan Document, no Loan Party shall be required to take any other actions other than those set forth in the definitions of Domestic Collateral and Guarantee Requirement, Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
(k)In addition, for the avoidance of doubt, no French Guarantor shall be under any obligation to grant security interest on any asset if it is determined by such French Guarantor that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered).
6.43.Maintenance of Ratings. The Company will use commercially reasonable efforts to (a) obtain credit ratings for
the Credit Facilities from Moody’s and S&P within 45 days of the Closing Date and (b) cause to be maintained at all times (x) a corporate family rating, in the case of Moody’s and (y) an issuer credit rating, in the case of S&P, for the Company, but in the case of clauses (a) and (b), for the avoidance of doubt, not any specific rating.
6.44.Board Reporting. Together with its regularly delivered quarterly board materials, the Company, for itself and its Subsidiaries, will provide the Board of Directors with a report summarizing (i) intercompany Investments, (ii) prepayments of intercompany Indebtedness and (iii) incurrence and existence of intercompany Indebtedness.
6.45.Guaranties. The Company will cause (i) each applicable Wholly Owned Domestic Subsidiary (other than an Excluded Subsidiary) of the Company and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded debt of any (A) any Loan Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000) to guarantee the Obligations pursuant to a Guaranty and to satisfy the Collateral and Guarantee Requirements to the extent required by Section 2.18.
6.46.Merger; Consolidations; Fundamental Changes. The Company will not, nor will it permit any Subsidiary to, merge, amalgamate or consolidate with or into any other Person; provided that, so long as no Default or Unmatured Default shall have occurred and be continuing or would result therefrom, the Company may merge or consolidate with any other corporation and each Subsidiary may merge, amalgamate or consolidate with any other Person, provided, further, that (i) in the case of any such merger or consolidation involving the Company, the Company is the surviving corporation and continues to be organized in the United States, (ii) [reserved], (iii) in the case of any such merger, amalgamation or consolidation involving a Guarantor that does not survive or continue following such merger, amalgamation or consolidation, the surviving or continuing Person assumes all of such Guarantor’s obligations under the Loan Documents and, if not already the Company or a Guarantor, becomes a Guarantor pursuant to documentation reasonably satisfactory to the Administrative Agent and such surviving or continuing Person shall be organized in the United States or a Specified Foreign Jurisdiction and (iv) any Disposition of a Subsidiary that is otherwise permitted under Section 6.14.
The Company will not, nor will it permit any Subsidiary to, liquidate or dissolve, provided that a Subsidiary may liquidate or dissolve if the Company determines in good faith that such liquidation or dissolution is in the interest of the Company and is not materially disadvantageous to the Lenders (it being agreed that Guarantor that liquidates or dissolves shall transfer all of its assets to the Company or another Guarantor, unless otherwise permitted pursuant to Section 6.15).
6.47.Sale of Assets. The Company will not, nor will it permit any Subsidiary to, Dispose of its Property, to any other Person, except:
(x)Sales and leases of inventory in the ordinary course of business;
(xi)Dispositions of assets that are obsolete, damaged, worn out or surplus, in each case in the ordinary course of business;
(xii)Dispositions of machinery, equipment or other fixed assets to the extent that (A) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 180 days or
(B) the proceeds of such Disposition are applied to the purchase price of replacement assets within 180 days;
(xiii)Dispositions of cash, Cash Equivalents and the like in the ordinary course of business or in connection with cash management activities;
(xiv)Discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof and sales of accounts receivable in the ordinary course of business and at the request of the account debtor thereon to facilitate the processing and payment thereof;
(xv)Dispositions resulting from any taking or condemnation of any property of the Company or any Subsidiary by any Governmental Authority or any assets subject to a casualty;
(xvi)The lease or sublease of real property in the ordinary course of business and not constituting a sale and leaseback;
(xvii)Licenses and sublicenses of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business; provided, that such licensing or sublicensing of intellectual property is either (i) on a non-exclusive basis or (ii) exclusive only within the granted territory;
(xviii)Dispositions or the lapse or abandonment (including failure to maintain) in the ordinary course of business of any intellectual property of the Company or any Subsidiary determined in the reasonable good faith judgment of the respective owner to be no longer useful, necessary, or otherwise material in the operation of the business of the Company or any Subsidiary;
(xix)Issuance of Capital Stock by a Subsidiary to the Company or to a Wholly Owned Subsidiary;
(xx)Dispositions constituting Investments permitted by Section 6.15, Dispositions constituting Restricted Payments permitted by Section 6.25 and Dispositions constituting mergers, consolidations, or fundamental changes permitted by Section 6.13;
(xxi)Dispositions of any property, interests or assets (i) to any Loan Party and (ii) between Subsidiaries that are not Guarantors; provided that, prior to the date on which the Existing Term Loans are no longer outstanding, this clause (xii) shall not permit Dispositions from a Foreign Loan Party or any Subsidiary of a Foreign Loan Party to the Company or any Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose;
(xxii)the Company or any Subsidiary may consummate the concurrent purchase and sale or exchange of property useful in a similar business between the Company or any of its Subsidiaries and another person to the extent that the assets received by the Company or its Subsidiaries are of equivalent or greater fair market value than the assets transferred; provided that to the extent the assets Disposed of pursuant to this clause (xiii) constituted Collateral, the assets received by the Company or its applicable Subsidiary shall also constitute Collateral;
(xxiii)Dispositions of treasury stock of the Company to Subsidiaries for use as consideration for acquisitions permitted under Section 6.15;
(xxiv)Creation of Liens permitted by Section 6.16 and Dispositions in connection with such Liens;
(xxv)Other Dispositions of Property that, together with all other Property of the Company and its Subsidiaries previously Disposed of in reliance upon this clause (xvi) during the twelve-month period ending with the most recent month prior to the month in which any such Disposition occurs for which financial statements of the Company have been delivered pursuant to Section 6.1(i) or (ii), did not constitute a Substantial Portion of the Property of the Company and its Subsidiaries as of the end of such most recent prior month; provided that, with respect to any Disposition made in reliance on this Section 6.14(xvi), (a) the consideration paid to the Company and its Subsidiaries in such Disposition is 100% cash or Cash Equivalents, (b) in the case of any such Disposition resulting in Net Cash Proceeds in excess of $50,000,000, on a Pro Forma Basis, the Company’s Total Net Leverage Ratio (without giving effect to any netting of cash received in connection with such Disposition) is less than or equal to such Total Net Leverage Ratio immediately prior to giving pro forma effect thereto (as determined in good faith by the Company), (c) except for a Disposition that is not an Asset Sale Prepayment Event, at least 85% of the Net Cash Proceeds thereof are not subject to reinvestment rights but instead used to prepay Term Loans pursuant to Section 2.6.5(b) (except to the extent not required pursuant to the terms of Section 2.6.5 or Section 2.6.11) and (d) the Net Cash Proceeds from any such Disposition (or series of related Dispositions) resulting in Net Cash Proceeds in excess of $75,000,000 are used to prepay Term Loans pursuant to
Section 2.6.5(b) (except to the extent not required pursuant to the terms of Section 2.6.5 or Section 2.6.11), within 5 Business Days after receipt of the Company or a Subsidiary of such Net Cash Proceeds; and
(xxvi)any surrender or waiver of contract rights or the settlement, release or surrender of any contract, tort or other litigation claims.
Notwithstanding anything in this Section 6.14 to the contrary, (x) no such Dispositions of property may be made (other than pursuant to clause (i) above) if any Default or, in the case of clause (xvi), Unmatured Default has occurred and is continuing and
(y) no such Dispositions of Equity Interests in any Guarantor may be made to any Person if such Disposition would result in such Guarantor being prohibited by applicable law or regulations or by the terms of any binding contractual arrangement from providing its Guaranty hereunder and under the other Loan Documents unless such Guarantor ceases to be a Subsidiary of the Company as a result of such Disposition.
6.48.Investments and Acquisitions. The Company will not, nor will it permit any Subsidiary to, make any Investments or to make any Acquisition of any Person, except:
(xxvii)Investments in cash and Cash Equivalents;
(xxviii)Investments in the Company and the Subsidiaries (other than, prior to the date on which the Existing Term Loans are no longer outstanding, Investments from a Foreign Loan Party or any Subsidiary of a Foreign Loan Party in the Company or any Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose); provided that at no one time shall the aggregate outstanding principal amount of all Investments made by a Loan Party in an External Subsidiary on or after October 20, 2022 in reliance on this clause (ii) exceed the sum of (x) $10,000,000 and (y) cash and Cash Equivalents received by a Loan Party on or after October 20, 2022 from one or more External Subsidiaries; provided that the outstanding principal amount of Investments made in reliance on clause (x) shall be (without duplication) reduced by the amount of capital returned (exclusive of items reflected in Consolidated Net Income) to a Loan Party from any such Investments made in reliance on such clause, which reductions may not exceed in aggregate amount the amount originally invested;
(xxix)Investments in existence on October 20, 2022 and set forth on Schedule 6.15;
(xxx)other intercompany Investments made by a Loan Party in an External Subsidiary in connection with ordinary course cash management activities; provided that any Investment in respect of cash management operations that exceeds $10,000,000 will only be permitted to the extent that the Company reports such Investment to the Board of Directors in the regular fiscal quarter reporting immediately following such Investment in compliance with Section 6.11;
(xxxi)[reserved];
(xxxii)Investments received as part of the settlement of litigation or in satisfaction of extensions of credit to any Person pursuant to the reorganization, bankruptcy or liquidation of such Person or a good faith settlement of debts with such Person;
(xxxiii)Investments received in settlement of amounts due to the Company or any Subsidiary effected in the ordinary course of business;
(xxxiv)so long as no Default or Unmatured Default has occurred and is continuing or would be caused thereby, other Investments made with cash, Cash Equivalents or with assets that do not (and are not required hereunder or under any other Loan Document to) constitute Collateral provided that the aggregate amount of such Investments made (net of any return in cash (including via book entry) of the principal amount thereof) does not exceed $35,000,000;
(xxxv)Investments by the Company or any of its Subsidiaries in exchange for consideration consisting only of Capital Stock (other than Disqualified Stock) of the Company or Net Cash Proceeds of a substantially concurrent sale of Capital Stock (other than Disqualified Stock) of the Company;
(xxxvi)Investments by the Company or any of its Subsidiaries in payroll, commission, travel and similar advances to cover matters that are reasonably expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(xxxvii)Investments by the Company or any of its Subsidiaries in the form of loans or advances to employees, officers or directors of the Company or any Subsidiary (i) in the ordinary course of business or (ii) in an aggregate amount not to exceed $5,000,000 (including, for the avoidance of doubt, any such Investments existing as of the Closing Date) at any one time outstanding to fund the purchase of Capital Stock of the Company by such Persons;
(xxxviii)Investments made by the Company or any of its Subsidiaries in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by the Company and its Subsidiaries in connection with such plans;
(xxxix)Receivables owing to the Company and extensions of trade credit in the ordinary course of business;
(xl)[reserved];
(xli)Investments consisting of licensing, sublicensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business; provided, that such licensing, sublicensing or contribution of intellectual property is either (i) on a non-exclusive basis or (ii) exclusive only within the granted territory;
(xlii)any Investment consisting of cash deposits (including escrowed deposits) pursuant to binding commitments of the Company or its Subsidiaries in effect with respect to (i) issuances or refinancings of Indebtedness otherwise permitted hereunder and (ii) Acquisitions permitted hereunder and not yet consummated; and
(xliii)prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business.
Any Investment in any Person other than a Loan Party that is otherwise permitted by this Section 6.15 may be made through substantially concurrent intermediate Investments in Subsidiaries that are not Loan Parties that are part of the same transaction or series of related transactions, and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above. The amount of any Investment made other than in the form of cash or Cash Equivalents shall be the fair market value thereof valued at the time of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
For purposes of determining compliance with this Section 6.15, if an Investment meets, in whole or in part, the criteria of one or more of the categories of Investments (or any portion thereof) permitted in this Section 6.15, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such Investment (or any portion thereof) in any manner that complies with this Section 6.15 and will be entitled to only include the amount and type of such Investment (or any portion thereof) in one of the above clauses and such Investment will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof).
6.49.Liens. The Company will not, nor will it permit any Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the Property of the Company or any of its Subsidiaries, except:
(xliv)(a) Permitted Encumbrances, (b) Liens, if any, created under the Loan Documents (including Liens created under the Security Documents securing Obligations) and (c) subject to the Intercreditor Agreements, Liens on the Collateral securing obligations in respect of Indebtedness outstanding pursuant to clauses (b), (c), (d), (e),
(f) and (g) of Section 6.18(i);
(xlv)Liens existing on the Closing Date and described on Schedule 6.16, but not including any subsequent increase in the principal amount secured thereby;
(xlvi)[reserved];
(xlvii)[reserved];
(xlviii)[reserved];
(xlix)Liens in favor of financial institutions against cash pooling arrangements or bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business and consistent with standard business practices in such foreign jurisdiction, provided that any such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Company or its Subsidiaries;
(l)Liens customary in the banking industry constituting a right of set-off, revocation, refund or chargeback under a customary deposit agreement or under the Uniform Commercial Code of a bank or other financial institution (or similar Liens of non-U.S. financial institutions) incurred in the ordinary course of business where deposits are maintained by the Company or any Subsidiary;
(li)[reserved];
(lii)any Lien existing on any property or asset prior to the acquisition thereof by the Company or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Company or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(liii)Liens on assets and property of Foreign Subsidiaries securing Indebtedness and other obligations of such Foreign Subsidiaries in an aggregate outstanding amount not to exceed $10,000,000 at any one time;
(liv)Liens on fixed or capital assets acquired, constructed or improved by the Company or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by 6.18(xix), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Company or any Subsidiary;
(lv)Liens arising from filing UCC (or PPSA or similar law of any jurisdiction) financing statements or similar public filings, registrations or agreements in foreign jurisdiction regarding leases and consignment or bailee arrangements in the ordinary course of business permitted or not prohibited by any of the Loan Documents and Liens securing liabilities in respect of indemnification obligations thereunder as long as each such Lien only encumbers the assets that are the subject of the related lease (or contained in such leasehold) or consignment or bailee, and other precautionary statements, filings or agreements;
(lvi)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation and exportation of goods in the ordinary course of business;
(lvii)Liens on cash or Cash Equivalents permitted by Section 6.15 securing Swap Agreements in the ordinary course of business submitted for clearing in accordance with applicable law;
(lviii)Liens in favor of a Loan Party; provided that, prior to the date on which the Existing Term Loans are no longer outstanding, this paragraph (xv) shall not permit Liens granted by a Foreign Loan Party or any Subsidiary of a Foreign Loan Party to the Company or a Subsidiary of the Company that is not a Foreign Loan Party or Subsidiary of a Foreign Loan Party, other than in the ordinary course of business or for a bona fide business purpose;
(lix)Liens in favor of a commodity, brokerage or security intermediary who holds a commodity, brokerage or, as applicable, a security account on behalf of the Company or a Subsidiary provided such Lien encumbers only the related account and the property held therein and relates to the security for the activities associated with such account;
(lx)Liens on deposits or other amounts held in escrow to secure contractual payments (contingent or otherwise) payable by the Company or its Subsidiaries to a seller after the consummation of an Acquisition;
(lxi)Liens not otherwise permitted by the foregoing provisions of this Section 6.16, provided that (1) the aggregate outstanding amount secured by all such Liens shall not at any time exceed $25,000,000 (2) [reserved],
(3) at the time of such incurrence and immediately after giving effect thereto, no Default or Unmatured Default shall have occurred or be continuing and (4) to the extent any Liens on the Collateral outstanding under this clause (xviii) secure any Indebtedness for borrowed money, (x) the aggregate outstanding amount secured by all such Liens shall not at any time exceed $10,000,000 and (y) the Company, the applicable Loan Parties and the Agents shall enter into an intercreditor agreement in form and substance reasonably satisfactory to the Agents providing for such Indebtedness to be secured on a junior basis to (I) the Liens securing the Obligations, (II) the Liens securing the Superpriority Term Loan Facility and (III) the Liens securing the 2025 Notes (and the Lenders hereby authorize the Agents to negotiate and enter into any such documentation);
(lxii)Liens on Collateral securing obligations in respect of any Bi-lateral LC/WC Agreement outstanding pursuant to Section 6.18(xxii); provided that, either (x) the obligations under such Bi-lateral LC/WC Agreement shall constitute “Obligations” (as defined under the ABL Facility) or (y) a representative for the holders thereof shall have entered into an intercreditor agreement in form and substance reasonably satisfactory to the Agents (acting at the direction of the Required Lenders); and
(lxiii)Liens on Collateral securing obligations in respect of Permitted Refinancing Indebtedness permitted to be outstanding under this Agreement and to the extent such Liens are permitted pursuant to the proviso to clause (e) of the definition of “Permitted Refinancing Indebtedness”.
For purposes of determining compliance with this Section 6.16, if a Lien meets, in whole or in part, the criteria of one or more of the categories of Liens (or any portion thereof) permitted in this Section 6.16, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such Lien (or any portion thereof) in any manner that complies with this Section 6.16 and will be entitled to only include the amount and type of such Lien or liability secured by such Lien (or any portion thereof) in one of the above clauses and such Lien will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof).
6.50.Affiliates. The Company will not, and will not permit any Subsidiary to, enter into any transaction (including, without limitation, the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate unless such transaction, payment or transfer is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the Company and/or such Subsidiary, (c) solely between or among the Company and the other Guarantors, or solely among non- Guarantor Subsidiaries, (d) upon fair and reasonable terms (taken as a whole) not materially less favorable to the Company or such Subsidiary than the Company or such Subsidiary would obtain in a comparable arms-length transaction; provided, that (x) in the event such transaction involves an aggregate consideration in excess of $30,000,000, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Company and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such Affiliate Transaction satisfies the criteria in clause (d)) and (y) in the event such transaction involves an aggregate consideration in excess of $50,000,000, the Company has received a written opinion from an Independent Financial
Advisor stating that such transaction is fair to the Company or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Company or such Subsidiary in a
comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate, (e) a Restricted Payment permitted by Section 6.25 or (f) an Investment permitted by Section 6.15; provided that any Investment in an External Subsidiary will be made on commercially reasonable terms.
6.51.Indebtedness. The Company will not, and will not permit any Subsidiary, to create, incur or suffer to exist any Indebtedness, except:
(lxiv)(a) The Loans and the other Obligations under the Loan Documents, (b) Indebtedness of the Company and the other Loan Parties under the ABL Facility, the guarantees thereof and the issuance and creation of letters of credit and bankers’ acceptances thereunder (with letters of credit and bankers’ acceptances being deemed to have a principal amount equal to the face amount thereof) up to an aggregate principal amount or liquidation preference, if applicable, not to exceed at any one time outstanding $250,000,000; (c) Indebtedness of the Company and the other Loan Parties under the Superpriority Term Loan Facility in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions), (d) Indebtedness of the Company and the other Loan Parties under the Existing Term Loan Facility in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions), (e) Indebtedness of the Company and the other Loan Parties under the 2024 Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions), (f) Indebtedness of the Company and the other Loan Parties under the 2025 Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions) and (g) Indebtedness of the Company and the other Loan Parties under the New 2L Notes in an aggregate principal amount equal to the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions) plus any additional principal amount incurred pursuant to the payment-in-kind or capitalization of periodic interest due on the New 2L Notes plus any additional principal amount incurred pursuant to a Registered Exchange Offer in accordance with Section 6.33;
(lxv)Indebtedness of the Company and its Subsidiaries existing as of the Closing Date (other than Indebtedness outstanding pursuant to clauses (i)(b), (i)(c), (i)(d), (i)(e), (i)(f) and (i)(g) above) and set forth on Schedule 6.18;
(lxvi)Indebtedness consisting of avals by any of the Company or its Subsidiaries for the benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the Company or its Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices;
(lxvii)[reserved];
(lxviii)Any Permitted Refinancing Indebtedness in respect of any Indebtedness referred to in clauses (i)(b), (i)(c), (i)(f), (i)(g) or (ii) above;
(lxix)Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(lxx)Indebtedness (other than Indebtedness for borrowed money) arising from agreements of the Company or a Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection any acquisition or Disposition otherwise permitted under this Agreement;
(lxxi)Indebtedness Incurred by the Company or its Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(lxxii)[reserved];
(lxxiii)Indebtedness incurred in the ordinary course of business in connection with cash pooling arrangements and cash management incurred in the ordinary course of business in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto;
(lxxiv)Indebtedness in respect of performance, surety, customs and appeal bonds, or any indemnity agreement related thereto, arising in the ordinary course of business;
(lxxv)Other Indebtedness of the Company and its Subsidiaries; provided that, at the time of the creation, incurrence or assumption of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other Indebtedness does not exceed an amount equal to $50,000,000;
(lxxvi)Guarantee Obligations in respect of Indebtedness permitted under this Section 6.18; provided that
(i) if any Indebtedness that is Guaranteed is subordinated to the Obligations then any Guarantee Obligations in respect of such Indebtedness shall be subordinated to the Obligations of the applicable Loan Party to the same extent and on terms not materially less favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Obligations, (ii) no such permitted Indebtedness in respect of the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing Term Loans and/or the ABL Facility (or in each case any Permitted Refinancing Indebtedness thereof) shall be Guaranteed by any Subsidiary unless such Subsidiary has Guaranteed the applicable Obligations pursuant to a Guaranty, (iii) such Guarantee Obligations shall be incurred in compliance with
Section 6.15, (iv) no Indebtedness of a Loan Party, other than any Indebtedness permitted pursuant to
Section 6.18(i), (ii) or (v), shall be Guaranteed by another Loan Party and (v) no such permitted Indebtedness of an External Subsidiary shall be Guaranteed by a Loan Party unless otherwise permitted pursuant to Section 6.15;
(lxxvii)Indebtedness consisting of the financing of insurance premiums;
(lxxviii)Indebtedness in respect of Swap Agreements permitted by Section 6.21;
(lxxix)Indebtedness among the Company and its Subsidiaries (including between or among Subsidiaries) incurred in accordance with Section 6.15;
(lxxx)other Indebtedness (a) that is unsecured or, if secured, secured on a junior basis to the Obligations and the obligations under the ABL Facility, the Superpriority Term Loans, the 2025 Notes and the New 2L Notes on substantially similar terms on which the New 2L Notes are subordinated to the Obligations and the obligations under the ABL Facility, the Superpriority Term Loans and the 2025 Notes, (b) that is expressly subordinated to the prior payment in full in cash of all Obligations and the obligations under the ABL Facility, the Superpriority Term Loans, the 2025 Notes and the New 2L Notes, (c) that does not require any mandatory payments in cash prior to the Maturity Date or the maturity date applicable to the ABL Facility, the Superpriority Term Loans, the 2025 Notes and the New 2L Notes, (d) the final maturity date and weighted average life of which is no earlier than the Maturity Date and then remaining weighted average life of the Term Loans, (e) the terms of which are no more restrictive to the Company and its Subsidiaries than those under this Agreement and (f) the proceeds of which are used to prepay or repay amounts outstanding under the Existing Term Loan Facility or the 2024 Notes;
(lxxxi)[reserved];
(lxxxii)Indebtedness of the Company or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Finance Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof (and not in contemplation thereof), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause shall not exceed $20,000,000 at any time outstanding;
(lxxxiii)Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(lxxxiv)any Indebtedness, liability or other obligations arising under or in connection with a declaration of joint and several liability (hoofdelijke aansprakelijkheid) issued by a Dutch Loan Party in respect of another Loan Party as referred to in Section 2:403 of the Dutch Civil Code (including any residual liability (overblijvende aansprakelijkheid) under such declaration arising pursuant to Section 2:404(2) Dutch Civil Code); and
(lxxxv)Indebtedness consisting of Bi-lateral LC/WC Agreements in an aggregate maximum principal exposure amount at any one time up to $55,000,000.
Notwithstanding anything in this Section 6.18 to the contrary, (x) any Indebtedness owing by any Loan Party to any External Subsidiary shall be (a) unsecured and (b) expressly subordinated to the prior payment in full in cash of all Obligations; provided that such Indebtedness shall be incurred in compliance with Section 6.15, (y) any such Indebtedness owing by any Foreign Subsidiary to any Domestic Subsidiary shall be expressly subordinated to the prior payment in full in cash of all Obligations and (z) any intercompany Indebtedness that exceeds $10,000,000 will only be permitted to the extent that the Company reports such Indebtedness to the Board of Directors in the regular fiscal quarter reporting immediately following the incurrence of Indebtedness that caused aggregate intercompany Indebtedness to exceed $10,000,000 in compliance with Section 6.11.
The accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, the payment of dividends on Disqualified Equity Interests in the form of additional shares of Disqualified Equity Interests, accretion or amortization of original issue discount or liquidation preferences and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the Exchange Rate or currencies will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.18. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a consolidated balance sheet of the Company dated such date prepared in accordance with GAAP.
This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.
Further, for purposes of determining compliance with this Section 6.18, if an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Indebtedness (or any portion thereof) permitted by this Section 6.18, the Company may, in its sole discretion, classify or divide (and reclassify and redivide) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.18 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding under this Agreement and all Indebtedness (other than in respect of Swap Agreements, Bi-lateral LC/WC Agreements and ordinary course cash management obligations) permitted to be incurred or outstanding pursuant to Section 6.18(i)(a), (i)(b), (i)(c), (i)(d), (i)(e), (i)(f) or (i)(g) shall at all times be deemed to have been incurred pursuant to Section 6.18(i)(a), (i)(b), (i)(c), (i)(d), (i)(e), (i)(f) or (i)(g), as applicable.
6.52.Negative Pledge Clauses. The Company will not, and will not permit any Subsidiary to, enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of the Company or any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, other than (a) restrictions and conditions in this Agreement, the other Loan Documents, any Indebtedness permitted by Section 6.18(i), any credit agreements, indentures or similar agreements governing Indebtedness permitted to be incurred or outstanding pursuant to Section 6.18 to the extent such agreements contain applicable Lien restrictions, in the good faith determination of the Company, not materially less favorable to the Lenders than those contained in customary documentation governing similar Indebtedness in the market at the time of such incurrence, and any Permitted Refinancing Indebtedness in respect thereof, (b) customary restrictions and conditions contained in agreements relating to Dispositions permitted by Section 6.14 pending the consummation of such Dispositions, (c) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness or the Persons obligated thereon, (d) customary provisions in leases and other contracts restricting the assignment, subletting or other transfer thereof (including the granting of any Lien), (e) restrictions or conditions imposed by restrictions on cash and other deposits or net worth provisions in leases and other agreements entered into in the ordinary course of business, (f) restrictions and conditions binding on a Subsidiary or its assets at the time such Subsidiary first becomes a Subsidiary or such assets were first acquired by such Subsidiary (other than a Subsidiary that was a Subsidiary on the Closing Date or assets owned by any Subsidiary on the Closing Date), so long as such contractual obligations were not entered into solely in contemplation of such Person becoming a Subsidiary or assets being acquired, (g) customary provisions in partnership agreements, limited liability company governance documents, joint venture agreements and other similar agreements that restrict the transfer of assets of, or ownership interests in, the relevant partnership, limited liability company, joint venture or similar Person, (h) [reserved], (i) with respect to bank deposit accounts, cash sweep arrangements, cash management services or cash pooling arrangements, conditions that require consent of the bank before any lien or pledge arrangement securing obligations and liabilities of the Company or any Subsidiary are enacted (with each of the foregoing being within the general parameters customary in the banking industry or arising pursuant to the
applicable banking institution’s general terms and conditions) or (j) restrictions in respect of assets that, taken as a whole, are immaterial, provided that in good faith judgment of the Company, such conditions would not have a material adverse effect on the ability of the Company to satisfy its Obligations hereunder.
6.53.Limitation on Restrictions on Subsidiary Distributions. The Company will not, and will not permit any Subsidiary to, enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the Company to (i) pay dividends or make any other distributions in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, any Loan Party, (ii) make loans or advances to or Investments in any Loan Party or (ii) transfer any of its assets to any Loan Party, except for such encumbrances or restrictions existing under or by reason of (a) restrictions and conditions existing under the Loan Documents, any other Indebtedness permitted by Section 6.18(i), any credit agreements, indentures or similar agreements governing Indebtedness permitted to be incurred pursuant to Section 6.18 to the extent such
agreements’ applicable restrictions will not materially impair the Company’s ability to make principal or interest payment on the Loans, and any Permitted Refinancing Indebtedness in respect thereof, (b) any restrictions with respect to a Subsidiary imposed pursuant to an agreement which has been entered into in connection with the disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, (c) any restrictions with respect to assets encumbered by a Lien permitted by Section 6.16 so long as such restriction applies only to the assets encumbered by such permitted Lien, (d) to the extent required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary of which less than 90% of the Voting Stock is owned by the Company or any of its Subsidiaries, (e) [reserved], (f) applicable Requirements of Law, (g) customary restrictions and
conditions contained in any agreement relating to the Disposition of any property not prohibited by Section 6.14 pending the consummation of such Disposition, (h) any agreement in effect at the time a Subsidiary becomes a Subsidiary of the Company, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a Subsidiary of the Company, (i) any instrument governing Indebtedness assumed in connection with any permitted Acquisition and permitted pursuant to Section 6.18, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; or (j) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise permitted by the Loan Documents of the contracts, instruments or obligations referred to in clauses (b), (h) or (i) above; provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing; provided, further, that this Section 6.20 shall not apply to encumbrances or restrictions (x) arising by reason of customary non-assignment or no-subletting clauses in leases or other contracts entered into in the ordinary course of business and consistent with past practices or (y) in agreements governing any Indebtedness permitted pursuant to Section 6.18(xix) otherwise permitted hereby and covering only those assets financed by such Indebtedness.
6.54.Swap Agreements. The Company will not, and will not permit any Subsidiary to, enter into or remain a party to any Swap Agreement for purposes of financial speculation.
6.55.[Reserved].
6.56.[Reserved].
6.57.[Reserved].
6.58.Restricted Payments. The Company will not, and will not permit any Subsidiary to, declare or pay any dividend (other than dividends payable solely in Capital Stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Company or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any Subsidiary (collectively, “Restricted Payments”), except:
(a)any Subsidiary may make Restricted Payments to the Company or another Subsidiary; provided that, in the case of Restricted Payments to (i) any Subsidiary, the Capital Stock of which is not 100% pledged as Collateral or
(ii) an External Subsidiary, such Subsidiary shall receive no more than such Subsidiary’s ratable share of the Restricted Payment;
(b)[reserved];
(c)the Company may make payments in cash in lieu of the issuance of fractional shares or may repurchase partial interests in its Capital Stock for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Capital Stock;
(d)repurchases of Capital Stock deemed to occur as a result of Capital Stock being utilized to satisfy tax withholding obligations upon (A) the exercise of stock options or (B) the vesting of other equity awards that constitute Capital Stock;
(e)the Company may repurchase its Capital Stock upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Company accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Capital Stock;
(f)the Company may pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock of the Company (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Company or any of its Subsidiaries (or the estate, heirs, family members or former family members of any of the foregoing) (collectively, “Covered Persons”); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Unmatured Default or Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (f) in any fiscal year does not exceed (x) $2,500,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from the immediately preceding fiscal year (but not fiscal years ended prior to the Closing Date) which was not expended by the Company for Restricted Payments in such fiscal year (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (f) in such fiscal year) plus (z)
the net cash proceeds of any “key-man” life insurance policies of the Company or any of its Subsidiaries that have not been used to make any repurchases, retirements or acquisitions under this clause (f); provided, further, that cancellation of Indebtedness owing to the Company or any Subsidiary from Covered Persons in connection with a repurchase of such securities of the Company will not be deemed to constitute a Restricted Payment for purposes of this Section 6.25;
(g)provided no Unmatured Default or Default has occurred and is continuing, Restricted Payments made in cash, Cash Equivalents or with assets that do not (and are not required hereunder or under any other Loan Document to) constitute Collateral may be made in an aggregate amount not to exceed $15,000,000;
(h)[reserved];
(i)[reserved];
(j)[reserved]; and
(k)Restricted Payments pursuant to the Diebold, Incorporated 2014 Non-Qualified Stock Purchase Plan (or any successor thereto) in an aggregate amount (net of employee contributions) not to exceed $2,000,000 in any fiscal year.
Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.25 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Section 6.25 (it being understood that such Restricted Payment shall be deemed to have been made on the date of declaration or notice for purposes of such provision).
6.59.Certain Payments of Indebtedness. The Company will not, and will not permit any Subsidiary to, make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to Junior Debt and in each case any Permitted Refinancing Indebtedness in respect thereof
(collectively, the “Restricted Indebtedness”) except for (a) payments, prepayments, repurchases or redemptions, or other optional or voluntary defeasements, with the proceeds of any Permitted Refinancing Indebtedness in respect of such Restricted Indebtedness that is permitted by Section 6.18, (b) payments, prepayments, repurchases or redemptions, or other optional or voluntary defeasements with prepayment amounts declined by Term Lenders pursuant to Section 2.6.11; (c) payments, repurchases or redemptions of amounts outstanding under the Existing Term Loan Facility or the 2024 Notes with amounts actually received (x) by the Company from and after the Closing Date to such date from any capital contributions to, or the sale or issuance of Equity Interests of, the Company (other than (i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interest the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than such amounts outstanding under the Existing Term Loan Facility or the 2024 Notes, as applicable)) or (y) by the Company or a Subsidiary from the Incurrence of Indebtedness pursuant to Section 6.18(xvii);
(d) payments, repurchases or redemptions of the New 2L Notes with the Net Cash Proceeds actually received by the Company from and after the Closing Date to such date from any capital contributions to, or the sale or issuance of Equity Interests of, the Company (other than (i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than such New 2L Notes)) not in excess of $100,000,000, (e) payments, repurchases or redemptions of the 2024 Notes in connection with the Registered Exchange Offer and (f) repayments of intercompany Indebtedness (i) owing to the Company or another Loan Party (except, solely until the date on which the Existing Term Loans are no longer outstanding, other than in the ordinary course of business or for a bona fide business purpose, owing to Company or another Loan Party from a Foreign Loan Party), (ii) owing to an External Subsidiary from another External Subsidiary and (iii) owing to an External Subsidiary from a Loan Party in connection with ordinary course cash management activities; provided that any repayments of intercompany Indebtedness that exceeds $10,000,000 will only be permitted to the extent that the Company reports such repayments to the Board of Directors in the regular fiscal quarter reporting immediately following such repayment that caused aggregate intercompany repayments to exceed $10,000,000 in compliance with Section 6.11.
6.60.Amendments to Organizational Documents. The Company will not, and will not permit any Loan Party to amend, supplement, terminate, replace or waive or otherwise modify any Organizational Document of the Company or any Loan Party in a manner, taken as a whole, that is materially adverse to the interests of the Lenders.
6.61.Additional Covenants. If at any time after the date hereof the Company or any Guarantor shall become party to any instrument or agreement (including all such instruments or agreements in existence as of the date hereof) in respect of the ABL Facility, the Superpriority Term Loans, the 2025 Notes, the New 2L Notes and/or other material indebtedness for borrowed money with an outstanding individual principal or outstanding committed amount in excess of $50,000,000, and in each case any Permitted Refinancing Indebtedness in respect thereof, that includes any guarantee, security or financial covenants (other than any financial covenants set forth in the ABL Facility Documentation) or defaults (in each case solely to the extent then in effect) not substantially provided for in this Agreement or more favorable in any material manner to the lenders or holders thereunder than those provided for in this Agreement, then the Company shall promptly so advise the Administrative Agent at least five Business Days prior (or such later date as is acceptable to the Administrative Agent (acting at the direction of the Required Lenders)) to entering into any such instrument or agreement and provide the Administrative Agent with true and complete copies
of such instrument or agreement after the execution thereof. Thereupon, if the Administrative Agent or the Required Lenders shall request, the Company shall enter into an amendment to this Agreement or an additional agreement (as the Administrative Agent may request), providing for substantially the same such guarantee, security or financial covenants or defaults as provided for in such instrument or agreement to the extent required and as may be selected by the Administrative Agent.
6.62.DAC6. The Company shall supply to the Administrative Agent (in sufficient copies for all the Lenders if the Administrative Agent so requests): (i) promptly upon the making of such analysis or the obtaining of such advice, any analysis made or advice obtained on whether any transaction contemplated by the Loan Documents or any transaction carried out (or to be carried out) in connection with any transaction contemplated by the Loan Documents contains a hallmark as set out in Annex IV of DAC6 and (ii) promptly upon the making of such reporting and to the extent permitted by applicable law and regulation, any reporting made by any governmental or taxation authority by or on behalf of the Company or any of its Subsidiaries or by any adviser to such Person in relation to DAC6 or any law or regulation which implements DAC6 and any unique identification number issued by any governmental or taxation authority to which any such report has been made (if available).
6.63.[Reserved].
6.64.[Reserved].
6.65.Certain Post-Closing Obligations.
(a) As promptly as practicable, and in any event within the time periods after the Closing Date specified in Schedule 6.32 or such later date as the Administrative Agent reasonably agrees to in writing, the Company and each other Loan Party, as applicable, shall deliver the documents or take the actions specified on Schedule 6.32 that would have been required to be delivered or taken on the Closing Date but for the proviso to Section 4.1(f), in each case except to the extent otherwise agreed by the Administrative Agent and the Collateral Agent (acting at the direction of the Required Lenders) pursuant to their authority as set forth in the definitions of “Domestic Collateral and Guarantee Requirement” and “Canadian Collateral and Guarantee Requirement” and the Agreed Security Principles.
6.66.Registered Exchange Offer for 2024 Notes and Contingent Equity Raise.
(a)The Company shall (i) use reasonable best efforts, consistent with applicable securities laws, to file a Form S-4 by February 14, 2023 for a registered exchange of 2024 Notes held by holders that did not, or were not eligible to, participate in the 2024 Consent Solicitation and Exchange Offer for Units comprised of New 2L Notes and Warrants (the “Registered Exchange Offer”), on the terms contemplated for such Registered Exchange Offer in the Transaction Support Agreement, (ii) use reasonable best efforts, consistent with applicable securities laws, to launch the Registered Exchange Offer as soon as practicable but no later than March 15, 2023 and (iii) consummate the Registered Exchange Offer as soon as practicable but no later than May 30, 2023, subject to extension for SEC review period but in any event no later than June 30, 2023.
(b)The Company shall use reasonable best efforts to maximize participation in the Registered Exchange Offer by retail holder of 2024 Notes, which shall include, as part of the Registered Exchange Offer, providing for a soliciting broker fee payable to retail brokers that are appropriately designated by their tendering holder clients to receive such fee.
(c)If, after the 2024 Consent Solicitation and Exchange Offer and Registered Exchange Offer have been consummated, more than $20,000,000 of principal amount of 2024 Notes have not been exchanged for New 2L Notes and Warrants pursuant to the 2024 Consent Solicitation and Exchange Offer or Registered Exchange Offer (such 2024 Notes in excess of $20,000,000, the “Excess Stub Notes”), the Company shall, no later than April 15, 2024 actually receive capital contributions to, or the proceeds of the sale or issuance of Equity Interests of, the Company (other than
(i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Company or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than Excess Stub Notes)) in an amount sufficient to repurchase, redeem, prepay or pay in full the principal amount (and any other accrued and unpaid fees or expenses that remain unpaid at the time of repurchase, redemption, prepayment or payment in full) of the Excess Stub Notes, and proceeds of such equity capital raise shall be used to repurchase, redeem, prepay or pay in full the Excess Stub Notes prior to April 15, 2024.
ARTICLE VII DEFAULTS
The occurrence of any one or more of the following events shall constitute a Default:
7.1.Any representation or warranty made or deemed made by or on behalf of the Company or its Subsidiaries to the Lenders or the Administrative Agent or the Collateral Agent in any Loan Document, in connection with any Loan, or in any
certificate or information delivered in writing in connection with any Loan Document, shall be false in any material respect on the date as of which made.
7.2.Nonpayment of principal of any Loan when due, or nonpayment of interest on any Loan within five Business Days after written notice from the Administrative Agent that the same has become due, or nonpayment of any other obligations under any of the Loan Documents within five Business Days after written notice from the Administrative Agent that the same has become due.
7.3.The breach by any Loan Party of any of the terms or provisions in Sections 6.2, 6.3, 6.12, 6.13, 6.14, 6.15, 6.16,
6.17, 6.18, 6.19, 6.20, 6.21, 6.25, 6.26, 6.27, 6.28, 6.32 and/or 6.33.
7.4.The breach by any Loan Party of, or other default by any Loan Party under, any of the terms or provisions of this Agreement or any other Loan Document (other than a breach or default which constitutes a Default under Sections 7.1, 7.2 or7.3) which is not remedied within 30 days after written notice from the Administrative Agent.
7.5.Failure of the Company or any of its Subsidiaries to pay when due any principal of, or premium or interest on (beyond any applicable grace period therefor) any Indebtedness or net obligations under any Swap Agreement to the extent such Indebtedness and/or net obligations aggregate in excess of $50,000,000 (“Material Indebtedness”); or the default by the Company or any of its Subsidiaries in the performance of any term, provision or condition contained in any agreement under which any such Material Indebtedness was created or is governed, or any other event shall occur or condition exist, the effect of which is to cause, or to permit the holder or holders of such Material Indebtedness to cause, such Material Indebtedness to become due prior to its stated maturity; or any Material Indebtedness of the Company or any of its Subsidiaries shall be declared to be due and payable or required to be prepaid or repurchased (other than by a regularly scheduled payment) prior to the stated maturity thereof; provided that, notwithstanding anything set forth herein, a breach of the financial covenant under Section 6.1 of the ABL Facility shall not constitute a Default under this Section 7.5 unless and until the ABL Facility Administrative Agent or the requisite lenders under the ABL Facility shall have terminated the commitments thereunder or accelerated any ABL Facility Loans and declared such ABL Facility Loans due and payable in accordance with the terms of the ABL Facility Documentation (which such Default shall terminate automatically and immediately upon the requisite lenders under the ABL Facility rescinding such acceleration and/or waiving such event of default under the ABL Facility in accordance with the terms thereof).
7.6.The Company or any of its Subsidiaries (other than an Immaterial Subsidiary), shall (i) voluntarily have an order for relief entered with respect to it under any existing or future Debtor Relief Law, (ii) make an assignment for the benefit of creditors, (iii) apply for, seek, consent to, or acquiesce in, the appointment of a receiver, interim receiver, monitor, administrator, custodian, trustee, examiner, liquidator or similar official for it or any Substantial Portion of its Property, (iv) institute any proceeding seeking an order for relief under any existing or future Debtor Relief Law, seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution, winding up, liquidation, administration, reorganization, moratorium, arrangement, adjustment or composition of it or its debts or seeking similar relief under any Debtor Relief Law or similar proceeding or fail to file an answer or other pleading denying the material allegations of any such proceeding filed against it, (v) take any corporate, company or other action to authorize or effect any of the foregoing actions set forth in this Section 7.6, and in each case provided that any of the foregoing actions shall not constitute a Default if this would constitute a breach section 44 of the German Act on the Stabilisation and Restructuring Framework for Businesses (StaRUG) (vi) fail to contest in good faith any appointment or proceeding described in Section 7.7 or (vii) not pay, or admit in writing its inability to pay, its debts generally as they become due.
7.7.Without its application, approval or consent, a receiver, interim receiver, monitor, administrator, trustee, examiner, liquidator or similar official shall be appointed for the Company or any of its Subsidiaries (other than an Immaterial Subsidiary) or any Substantial Portion of their respective Property, or a proceeding described in Section 7.6(iv) shall be instituted against the Company or any of its Subsidiaries (other than an Immaterial Subsidiary) and such appointment continues undischarged or such proceeding continues undismissed or unstayed for a period of 60 consecutive days.
7.8.Any court, government or governmental agency shall without appropriate compensation condemn, seize or otherwise appropriate, or take custody or control of (each a “Condemnation”), all or any portion of the Property of the Company or any of its Subsidiaries which, when taken together with all other Property of the Company and its Subsidiaries so condemned, seized, appropriated, or taken custody or control of, during the twelve-month period ending with the month in which any such Condemnation occurs, constitutes a Substantial Portion or is reasonably likely to have a Material Adverse Effect.
7.9.One or more judgments for the payment of money in an aggregate amount in excess of $50,000,000 (other than judgments covered by insurance issued by an insurer that has accepted coverage and has the ability to pay such judgments) shall be rendered against the Company, any Subsidiary or any combination thereof and the same shall remain undischarged for a period of 90 consecutive days during which execution shall not be effectively stayed, or any action shall be legally taken by a judgment creditor to attach or levy upon any assets of the Company or any Subsidiary to enforce any such judgment which is not effectively stayed for a period of 30 consecutive days.
7.10.Any member of the Controlled Group shall fail to pay when due an amount or amounts aggregating in excess of
$50,000,000 which it shall have become liable to pay under Title IV of ERISA or Sections 412, 430, 431 or 432 of the Code; or notice of intent to terminate a Plan with Unfunded Liabilities in excess of $50,000,000 (a “Material Plan”) shall be filed under
Section 4041(c) of ERISA by any member of the Controlled Group, any plan administrator or any combination of the foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to impose liability (other than for premiums under Section 4007 of ERISA) in excess of $50,000,000 in respect of, or to cause a trustee to be appointed to administer any Material Plan; or a condition shall exist that constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, that Material Plan; or the determination by the PBGC of liability in excess of $50,000,000 on any member of the Controlled Group pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; or there shall occur a complete or partial withdrawal from, or a default, within the meaning of Section 4219(c)(5) of ERISA, with respect to one or more Multiemployer Plans which causes one or more members of the Controlled Group to incur a payment obligation in excess of $50,000,000; there shall occur a Foreign Plan Event or Canadian Pension Event which causes one or more members of the Controlled Group to incur liability in excess of $50,000,000.
7.11.The Company or any of its Subsidiaries shall be the subject of any proceeding or investigation related to any Environmental Law or Hazardous Substance, including pertaining to the Release by the Company or any of its Subsidiaries or any other Person of any Hazardous Substance, or any violation of any applicable Environmental Law, which, in either case, could reasonably be expected to have a Material Adverse Effect.
7.12.The occurrence of any Change of Control.
7.13.On and after the Closing Date, any Lien purported to be created on any material portion of the Collateral under any Security Document shall cease to be, or shall be asserted in writing by any Loan Party not to be, a valid and perfected Lien on such Collateral (subject to Liens Permitted under Section 6.16), except in connection with a release of such Collateral in accordance with the terms of this Agreement.
7.14.This Agreement, any Guaranty or any Security Document (after effectiveness thereof) shall for any reason cease to be in full force and effect and valid, binding and enforceable in accordance with its terms after its date of execution, or any Loan Party shall so state in writing, in each case other than in connection with a release of any Guaranty or security interest in accordance with the terms of this Agreement.
7.15.In relation to the Wincor Nixdorf Defined Benefit Pension Scheme, the Pensions Regulator issues a Financial Support Direction, a Contribution Notice or any other direction, notice, penalty, fine, order or requirement to the Company or any other Loan Party unless the aggregate liability of the Company and the other Loan Parties under all Financial Support Directions, Contribution Notices, directions, notices, penalties, fines, orders or requirements is less than $6,000,000.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.4.Acceleration.
(a)If any Default described in Section 7.6 or 7.7 occurs, the obligations of the Lenders to make Loans hereunder and the Commitments shall automatically terminate and the Obligations shall immediately become due and payable without presentment, demand, protest or notice of any kind, all of which the Company hereby expressly waives and without any election or action on the part of the Administrative Agent or any Lender.
(b)If any Default occurs and is continuing (other than a Default described in Section 7.6 or 7.7), the Required Lenders may terminate or suspend the obligations of the Lenders to make Loans and the Commitments hereunder, or declare the Obligations to be due and payable, or both, whereupon (if so declared) the Obligations shall become immediately due and payable, without presentment, demand, protest or notice of any kind, all of which the Company hereby expressly waives.
(c)[Reserved].
(d)[Reserved].
(e)[Reserved].
(f)[Reserved].
(g)Further, if the Term Loans are accelerated or otherwise become due prior to their maturity date, in each case, as a result of a Default, as a result of the commencement of a proceeding under any Debtor Relief Law, by operation of law or as a result of an acceleration thereunder, the amount of principal of and premium on the Term Loans that becomes due and payable shall equal 100% of the principal amount of the Term Loans then due on the date of such acceleration or such other prior due date, as if such acceleration or other occurrence were a voluntary prepayment of the Term Loans accelerated or otherwise becoming due.
8.5.Amendments.
8.2.1Subject to the provisions of this Article VIII, the Required Lenders (or the Administrative Agent with the consent in writing of the Required Lenders) and the Company may enter into agreements supplemental hereto for the purpose of adding or modifying any provisions to the Loan Documents or changing in any manner the rights of the Lenders or the Company hereunder or waiving any Unmatured Default or Default hereunder; provided, however, no such supplemental agreement shall, (a) without the consent of the Administrative Agent, modify any rights or obligations of any kind of the Administrative Agent or (b) without the consent of the Collateral Agent, modify any rights or obligations of any kind of the Collateral Agent, and provided further, that no such supplemental agreement shall,
(a)without the consent of each Lender directly and adversely affected thereby:
(i)increase any Commitment of any Lender without the written consent of such Lender;
(ii)extend the final maturity of any Loan, Commitment or Note or forgive all or any portion of the principal amount thereof (it being understood that a waiver of any condition precedent or the waiver of any default, event of default or mandatory prepayment shall not constitute a reduction in principal), or reduce the stated rate of interest (it being understood a waiver of default interest is not a reduction in the stated rate of interest) or fees or extend the time of payment of interest or fees thereon;
(iii)reduce or extend the scheduled amortization of any Loans or Commitments;
(iv)[reserved];
(v)change the currency in which any Term Loan or Commitment is denominated;
(vi)amend Section 2.10 or 12.2 or amend or modify, directly or indirectly, any provision of any Loan Document that requires payments to the Lenders to be made on a ratable basis or shared on a ratable basis;
(vii)directly or indirectly (A) subordinate any of the Credit Facilities or Obligations in right of payment to the prior payment of any other Indebtedness or obligations of the Loan Parties or (B) subordinate the Liens on any of the Collateral to any other Lien on such Collateral securing any other Indebtedness or obligations of the
Loan Parties (including, without limitation, any amendment to the definition of “Permitted Refinancing Indebtedness” that would have substantially the same effect); provided that the Liens on any of the Collateral may be subordinated to any other Lien on such Collateral securing any other Indebtedness of the Loan Parties, and such additional debt may be incurred, with the consent of the Supermajority Lenders as long as each Lender is offered the opportunity to provide its Pro Rata Share of such other Indebtedness and the terms of such other Indebtedness, on the date it is actually incurred, is in all material respects substantially equivalent to the terms on which the Lenders were offered the opportunity to provide such Indebtedness; or
(viii)designate any Subsidiary as “unrestricted” or otherwise exclude any Subsidiary from the requirements applicable to Subsidiaries pursuant to this Agreement.
(b)[Reserved].
(c)without the consent of all Lenders:
(i)amend this Section 8.2.1, reduce the percentage specified in the definitions of Required Lenders or Supermajority Lenders or include any new or increased Aggregate Outstandings or Aggregate Commitments established pursuant to any amendment hereto in the definitions of Required Lenders or Supermajority Lenders or threshold calculation in clause (e) below for purposes of any consent to be obtained therewith in connection with any transaction contemplated at the time of such amendment;
(ii)release all or substantially all of the Liens on the Collateral securing the Obligations or the Guarantors from the Guaranty, provided that for the avoidance of doubt releases pursuant to Section 11.9 will not require any amendment or waiver of this Agreement (it being understood that the determination that any assets acquired after the Closing Date shall not constitute or be required to constitute Collateral shall not be deemed a release of Collateral), provided, further, that, notwithstanding anything to the contrary herein or in any other Loan Document, solely in immediate contemplation of or following commencement of bankruptcy, insolvency or reorganization proceedings with respect to the Company and its material Domestic Subsidiaries, the Guarantees provided by German-domiciled Guarantors and the Liens on assets of such entities may be released with the consent of the Supermajority Lenders, solely in the event that (x) (i) the Supermajority Lenders, (ii) lenders holding in excess of 66 2/3% of the outstanding loans under the Superpriority Term Loans, and (iii) holders holding in excess of 66 2/3% of the issued and outstanding 2025 Notes determine in good faith that the release of such Guarantees and Liens is necessary to avoid material value deterioration of the German-domiciled Guarantors and (y) such Guarantors are concurrently released from their guarantee obligations under the Superpriority Term Loans and the 2025 Notes and the Liens on the assets of such entities securing the Superpriority Term Loans and the 2025 Notes are concurrently released, and simultaneously with such release, the Lien granted by the Company
on the Capital Stock of the Diebold Nixdorf Holding Germany GmbH in favor of the Collateral Agent shall pursuant to the First Lien Pari Passu Intercreditor Agreement automatically rank junior in priority to the Lien on such assets securing the Superpriority Term Loan Facility, but, for the avoidance of doubt, shall continue to rank on a pari passu basis with the Lien on such assets securing the 2025 Notes and on a senior basis to the Lien on such assets securing the New 2L Notes; provided that, no such release will be effective until the applicable proceeding is actually commenced; or
(iii)permit the Company to assign its rights under this Agreement.
(d)subject to Section 8.2.1(c)(ii), without the consent of the Supermajority Lenders, release Liens on Collateral, with a fair market value in excess of $50,000,000 in the aggregate, securing the Obligations.
(e)without the consent of Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 75% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders:
(i)amend, waive or otherwise modify Section 13.1(b)(iii)(c) to permit purchases of Term Loans hereunder by the Company or any of its Subsidiaries with non-cash consideration; or
(ii)amend, waive or otherwise modify the second provision to Section 11.9(d).
(f)without the consent of Lenders whose Aggregate Outstandings and Aggregate Commitments (without duplication) exceed 60.1% of the Aggregate Outstandings and Aggregate Commitments (without duplication) of all Lenders, amend, waive or otherwise modify Section 6.33, provided that, so long as the Company is not in beach of any requirement to use reasonable best efforts pursuant to Section 6.33(a), any date in Section 6.33(a) may be extended one time by an aggregate total of up to 15 days as a result of one or more such amendment, waiver or modification with the consent of the Required Lenders.
8.1.1[Reserved]:
8.1.2Notwithstanding anything herein to the contrary, Defaulting Lenders shall not be entitled to vote (whether to consent or to withhold its consent) with respect to any amendment, modification, termination or waiver and, for purposes of determining the Required Lenders, the Commitments and the Aggregate Outstandings of such Defaulting Lender shall be disregarded, in each case except as provided in Section 2.17(a).
8.1.3Notwithstanding anything to the contrary herein or in any other Loan Document, (a) [reserved]; (b) Permitted Amendments may be executed and shall be effective in accordance with the terms of Section 2.22 when signed by the parties required under such Section; (c) [reserved], (d) [reserved], (e) any amendment to this Section 8.2.4 shall require the consent of each Term Lender adversely affected thereby and (f) any amendment, waiver or other modification of this Agreement or any other Loan Document that by its terms affects the rights or duties under this Agreement of the Lenders of one or more Classes (but not the Lenders of any other Class), may be effected by an agreement or agreements in writing entered into by the Company and the requisite number or percentage in interest of each affected Class of Lenders that would be required to consent thereto under this Section if such Class of Lenders were the only Class of Lenders hereunder at the time.
8.1.4Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent may, with the consent of the Company only, amend, modify or supplement this Agreement or any of the other Loan Documents as may be reasonably necessary or advisable to cure any error, ambiguity, omission, defect or inconsistency in order to more accurately reflect the intent of the parties, provided that (x) prior written notice of such proposed cure shall be given to the Lenders and (y) the Required Lenders do not object to such cure in writing to the Administrative Agent within five Business Days of such notice. In connection with any amendments required by or appropriate to effectuate Section 6.28, the Administrative Agent and the Company may, without the consent of any other party hereto, make such changes to this Agreement as they deem necessary to reflect the changes required by such Sections.
8.1.5Notwithstanding anything to the contrary herein or in any other Loan Document, (a) no modification or waiver of any provision of this Agreement relating to the Administrative Agent shall be effective without the written consent of the Administrative Agent; (b) no modification or waiver of any provision of this Agreement relating to the Collateral Agent shall be effective without the written consent of the Collateral Agent (acting at the direction of the Required Lenders);
(c) [reserved]; and (d) the Administrative Agent may waive payment of the fee required under Section 13.1 without obtaining the consent of any other party to this Agreement.
8.1.6Notwithstanding anything to the contrary herein or in any other Loan Document, guarantees, collateral documents and related documents executed by Loan Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent or the Collateral Agent (as applicable) and may be, together with any other Loan Document, entered into, amended, supplemented or waived, without the consent of any other person, by the applicable Loan Party or Loan Parties and the Administrative Agent or the Collateral Agent (as applicable), each acting at the direction of the Required Lenders, to (A) effect the granting, perfection, protection, expansion or enhancement of any security interest in
any Collateral or additional property to become Collateral for the benefit of the Secured Parties, (B) as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable requirements of law, or (C) to cure ambiguities, omissions, mistakes or defects or to cause such guarantee, collateral security document or other document to be consistent with this Agreement and the other Loan Documents.
8.1.7The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Lender for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of this Agreement or any Loan Document unless such consideration is offered to all Lender and is paid to all Lenders that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or amendment; provided that, this Section 8.2.8 may not be amended, modified or waived without the consent of each Lender directly and adversely affected thereby.
8.6.Preservation of Rights. No delay or omission of the Lenders, the Administrative Agent or the Collateral Agent to exercise any right under the Loan Documents shall impair such right or be construed to be a waiver of any Default or an acquiescence therein, and the making of a Loan notwithstanding the existence of a Default or the inability of the Company to satisfy the conditions precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right shall not preclude other or further exercise thereof or the exercise of any other right, and no waiver, amendment or other variation of the terms, conditions or provisions of the Loan Documents whatsoever shall be valid unless in writing signed by the Lenders required pursuant to Section 8.2, and then only to the extent in such writing specifically set forth. All remedies contained in the Loan Documents or by law afforded shall be cumulative and all shall be available to the Administrative Agent, the Collateral Agent and the Lenders until the Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) have been paid in full.
ARTICLE IX [RESERVED] ARTICLE X
GENERAL PROVISIONS
10.14.Survival of Representations. All representations and warranties of the Company contained in this Agreement shall survive delivery of the Loan Documents and the making of the Loans herein contemplated.
10.15.Governmental Regulation. Anything contained in this Agreement to the contrary notwithstanding, no Lender shall be obligated to extend credit to the Company in violation of any limitation or prohibition provided by any applicable statute or regulation.
10.16.Headings. Section headings in the Loan Documents are for convenience of reference only, and shall not govern the interpretation of any of the provisions of the Loan Documents.
10.17.Entire Agreement; Integration. The Loan Documents embody the entire agreement and understanding among the Company, the other Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders and supersede all prior agreements and understandings among the Company, the other Loan Parties, the Administrative Agent, the Collateral Agent and the Lenders relating to the subject matter thereof other than any separate letter agreements among the Company and the Administrative Agent, the Arranger and/or the Collateral Agent which survive the execution of the Loan Documents
10.18.Several Obligations; Benefits of this Agreement. The respective obligations of the Lenders hereunder are several and not joint and no Lender shall be the partner or agent of any other (except to the extent to which the Administrative Agent and/or the Collateral Agent is authorized to act as such). The failure of any Lender to perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder. This Agreement shall not be construed so as to confer any right or benefit upon any Person other than the parties to this Agreement and their respective successors and assigns.
10.19.Expenses; Indemnification.
(at)The Company shall reimburse the Agents, the Arranger and their respective Affiliates for any reasonable out-of-pocket costs and expenses documented in reasonable detail (limited in the case of legal fees and expenses, to the reasonable fees, charges and disbursements of one firm of counsel and a single firm of local counsel in each relevant jurisdiction for each of (i) the Administrative Agent and the Arranger, collectively and (ii) the Collateral Agent), upon presentation of a reasonably detailed statement of all such costs and expenses, paid or incurred by the Agents, the Arranger and their respective Affiliates in connection with the preparation, negotiation, execution, delivery, syndication, review, amendment, modification, and administration (including, without limitation, preparation of the reports described below) of the Loan Documents (which, in the case of preparation, negotiation, execution, delivery and administration of the Loan Documents shall be limited to a single counsel and a single local counsel in each relevant jurisdiction for each of (i) the Administrative Agent and the Arranger, collectively and (ii) the Collateral
Agent). The Company also agrees to reimburse the Agents and the Lenders for any reasonable out-of-pocket costs and expenses (limited in the case of legal fees and expenses, to the fees, charges and disbursements of one firm of counsel and a single firm of local counsel in each relevant jurisdiction for each of the Administrative Agent, the Collateral Agent and, collectively, the Lenders, plus in the case of an actual or perceived conflict of interest where the person affected by such conflict informs the Company of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected person and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected person) paid or incurred by the Agents or any Lender in connection with the collection and enforcement of the Loan Documents.
(au)The Company hereby further agrees to indemnify the Agents, the Arranger, each Lender and the respective Related Parties of each of the foregoing (each such party, an “Indemnitee”) and hold them harmless from and against all losses, claims, damages, liabilities and related expenses, including without limitation, any reasonable and documented (in reasonable detail) legal fees and expenses (but limited in the case of legal fees and expenses, to a single firm of counsel for all such Indemnitees, taken as a whole, and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for all such Indemnitees, taken as a whole (and, in the case of an actual or perceived conflict of interest where the Indemnitee affected by such conflict informs the Company of such conflict and thereafter retains its own counsel, of another firm of counsel for such affected Indemnitee and, if necessary, of a single firm of local counsel in each appropriate jurisdiction (which may include a single firm of special counsel acting in multiple jurisdictions) for such affected Indemnitee)) of any such Indemnitee to the extent arising out of, in connection with or as a result of the Transactions, including, without limitation, (i) the financings contemplated thereby, or any transactions connected therewith (including the Transactions) or any claim, litigation, investigation or proceeding (regardless of whether any such Indemnitee is a party thereto and regardless of whether such claim, litigation, investigation or proceeding is brought by a third party or by the Company or any of its Subsidiaries) to the extent related to any of the foregoing and (ii) the Release of Hazardous Substances at any real property or facility currently or formerly owned, leased or operated by the Company or any of its Subsidiaries, or any Environmental Liability related to the Company or any of its Subsidiaries; provided that the foregoing indemnity will not, as to any Indemnitee, apply to losses, claims, damages, liabilities and related expenses to the extent they (a) are found in a final and non-appealable judgment of a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Indemnitee or any of its Related Parties, (b) [reserved] or (c) any dispute solely among Indemnitees or their respective Related Parties other than claims against any agent or arranger in its capacity or in fulfilling its role as agent or arranger or any similar role under the Credit Facilities and other than claims to the extent arising out of any act or omission on the part of the Company or its Affiliates. This paragraph shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim. The obligations of the Company under this Section 10.6 shall survive the termination of this Agreement.
10.20.Severability of Provisions. Any provision in any Loan Document that is held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of all Loan Documents are declared to be severable.
10.21.Nonliability of Agents and Lenders. The relationship between the Company and the Lenders shall be solely that of borrower and lender. Neither the Administrative Agent, the Collateral Agent nor any Lender shall have any fiduciary responsibilities to the Company. Neither the Administrative Agent, the Collateral Agent nor any Lender undertakes any responsibility to the Company to review or inform the Company of any matter in connection with any phase of the Company’s business or operations. The Company agrees that neither the Administrative Agent, the Collateral Agent nor any Lender shall have liability to the Company (whether sounding in tort, contract or otherwise) for losses suffered by the Company in connection with, arising out of, or in any way related to, the transactions contemplated and the relationship established by the Loan Documents, or any act, omission or event occurring in connection therewith, except to the extent it is determined by a court of competent jurisdiction in a final and non-appealable order that such losses resulted from the gross negligence or willful misconduct of, or material breach of any of the Loan Documents by, the party from which recovery is sought. Neither the Administrative Agent, the Collateral Agent nor any Lender shall have any liability with respect to, and the Company hereby waives, releases and agrees not to sue for, any special, punitive, indirect or consequential damages suffered by the Company in connection with, arising out of, or in any way related to the Loan Documents, the Transactions or the other transactions contemplated thereby.
10.22.Confidentiality.
(av)Each of the Administrative Agent, the Collateral Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and be instructed and agree to keep such Information confidential), (ii) to the extent requested by any regulatory authority or by applicable laws or regulations, (iii) to the extent required by any subpoena or similar legal
process, provided, however, to the extent permitted by applicable law and if practical to do so under the circumstances, that the Person relying on this clause (iii) shall provide the Company with prompt notice of any such required disclosure so that the Company may seek a protective order or other appropriate remedy, and in the event that such protective order or other remedy is not obtained, such Person will furnish only that portion of the Information which is legally required, (iv) to any other party to this Agreement, (v) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (vi) subject to an agreement containing provisions substantially the same as those of this Section, to any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Company and its obligations, (vii) as permitted by Section 13.2 hereof, (viii) with the consent of the Company or (ix) to the extent such Information (1) becomes publicly available other than as a result of a breach of this Section or any agreement contemplated by this Section or (2) becomes available to the Administrative Agent, the Collateral Agent or any Lender on a nonconfidential basis from a source other than the Company (and not in breach of this Section or any agreement
contemplated by this Section). For the purposes of this Section, “Information” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or their business, other than any such information that is available to the Administrative Agent, the Collateral Agent or any Lender on a non-confidential basis prior to disclosure by the Company or any Subsidiary and other than information pertaining to this Agreement routinely provided by arrangers to data service providers, including league table providers, that serve the lending industry. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.
(aw)Notwithstanding the above, nothing in any Loan Document shall prevent disclosure of any confidential information or other matter to the extent that preventing that disclosure would otherwise cause any transaction contemplated by the Loan Documents or any transaction carried out in connection with any transaction contemplated by the Loan Documents to become an arrangement described in Part II A 1 of Annex IV of Directive 2011/16/EU.
(ax)EACH LENDER ACKNOWLEDGES THAT INFORMATION AS DEFINED IN SECTION 10.9(a) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS.
(ay)NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, EACH OF THE ADMINISTRATIVE AGENT, THE COLLATERAL AGENT AND THE LENDERS ACKNOWLEDGES THAT SOME OR ALL OF THE INFORMATION AS DEFINED IN SECTION 10.9(a) IS OR MAY BE PRICE SENSITIVE INFORMATION AND THAT THE USE OF SUCH INFORMATION MAY BE REGULATED OR PROHIBITED BY APPLICABLE LEGISLATION INCLUDING SECURITIES LAWS RELATING TO INSIDER TRADING (UNDER THE EU MARKET ABUSE REGULATION, GERMAN SECURITIES TRADING ACT
(Wertpapierhandelsgesetz - WpHG) OR OTHERWISE) AND EACH OF THE ADMINISTRATIVE AGENT AND THE LENDERS UNDERTAKES NOT TO USE ANY INFORMATION FOR ANY UNLAWFUL PURPOSE.
(az)ALL INFORMATION, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE COMPANY, THE ADMINISTRATIVE AGENT OR THE COLLATERAL AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING, THIS AGREEMENT WILL BE SYNDICATE- LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE COMPANY AND ITS RELATED PARTIES OR THEIR RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE COMPANY, THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW.
10.23.Nonreliance. Each Lender hereby represents that it is not relying on or looking to any Margin Stock for the repayment of the Loans provided for herein.
10.24.USA PATRIOT Act. Each Lender that is subject to the requirements of the Patriot Act hereby notifies the Loan Parties that pursuant to the requirements of the Patriot Act, it may be required to obtain, verify and record information that identifies the Loan Parties, which information includes the name and address of the Loan Parties and other information that will allow such Lender to identify the Loan Parties in accordance with the Patriot Act.
10.25.Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be
contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate
of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section 10.12 shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, shall have been received by such Lender.
10.26.Transparency Provisions. For the purposes of the transparency provisions set forth in the CICR Resolution of 4 March 2003 and in the “Disposizioni sulla trasparenza delle operazioni e dei servizi bancari e finanziari” issued by the Bank of Italy (as amended from time to time), each of the parties hereby acknowledges and confirms that:
(ba)they have appointed and have been assisted by their respective legal counsels in connection with the negotiation, preparation and execution of this Agreement; and
(bb)this Agreement, and all of its terms and conditions, including the Recitals and the schedules hereto, have been specifically negotiated in all their aspects (“oggetto di trattativa individuale”) between the parties to this Agreement.
ARTICLE XI THE AGENTS
11.20.Appointment. Each of the Lenders hereby irrevocably appoints (a) the Administrative Agent as its administrative agent and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto, and (b) the Collateral Agent as its collateral agent and authorizes the Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to the Collateral Agent by the terms hereof, together with such actions and powers as are reasonably incidental thereto.
(bc)Each of the Lenders authorises each of the Agents to perform the duties, obligations and responsibilities and to exercise the rights, powers, authorities and discretions specifically given to such Agent under or in connection with this Agreement and the other Loan Documents together with any other incidental rights, powers, authorities and discretions expressly including appearing before Spanish public notaries to grant or execute any Spanish Public Document or private deed related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, documents of formalisation, acknowledgement, confirmation, modification or release, acceptance of any security interest and acceptance of acknowledgement of debts by Guarantors).
(bd)At the request of each of the Agents, a Lender that cannot authorise or empower, or has not authorised or empowered, either Agent to act on its behalf, irrevocably undertakes to each of the Agents and the other Lenders, to appear before a Spanish public notary and execute the relevant Spanish Public Document or other private deed together with such Agent to enable them to exercise any right, power, authority or discretion vested in it as Administrative Agent or Collateral Agent, as applicable, pursuant to this Agreement and to execute any document or instrument including any Spanish Public Document.
(be)Each of the Lenders hereby releases each of the Agents from the restrictions (to the extent such restrictions would otherwise apply) on self-dealing and multi-representation pursuant to Section 181 of the German Civil Code (BGB) and similar restrictions (if any) applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Lender. Each of the Lenders, which, for whatever reason, cannot grant a release from the restrictions pursuant to Section 181 BGB shall inform each of the Agents accordingly and, upon reasonable request of the Administrative Agent or the Collateral Agent (acting at the direction of the Required Lenders), either act in accordance with the terms of the Loan Documents as required pursuant to the Loan Documents or grant a special power of attorney to a party acting on its behalf, in a manner that is not prohibited pursuant to Section 181 BGB, including (for the avoidance of doubt), for the purpose of creating, administration of or the release of security.
(bf)In relation to the Loan Documents governed by Italian law, each of the Lenders (except, with respect to clause (ii) below, for any Lender which has confirmed to the Collateral Agent that it cannot appoint the Collateral Agent as its agent (mandatario con potere di rappresentanza) in all cases of conflict of interest and self-dealing, in accordance with article 1394 and 1395 of the Italian Civil Code, provided that such Lender undertakes to take any action that the Collateral Agent will request to protect the Collateral Agent from any consequence of the above, including the ratification of any document or action executed or taken by the Collateral Agent) on behalf of itself and any of its Affiliates that are Secured Parties hereby irrevocably (i) appoints the Collateral Agent (mandatario con rappresentanza) to be its agent for the purpose of executing on behalf of itself and any of its Affiliates that are Secured Parties any Loan Document which is expressed to be governed by Italian law; (ii) consents that the Collateral Agent may act as its agent (mandatario con potere di rappresentanza) in all cases of conflict of interest and self-dealing, in
accordance with article 1394 and execute each Loan Document governed by Italian law expressed to be executed by the Collateral Agent on behalf of itself and any of its Affiliates that are Secured Parties including to execute any document with itself (contratto con sé stesso) in accordance with article 1395 of the Italian Civil Code; (iii) grants the Collateral Agent the power to negotiate and approve the terms and conditions of such Loan Documents, execute any other agreement or instrument, give or receive any notice or declaration, identify and specify to third parties the names of the Secured Parties at any given date, and take any other action in relation to the creation, perfection, maintenance, enforcement and release of the security created thereunder in the name and on behalf of the Secured Parties; (iv) confirms that in the event that any security created under the Italian Collateral Documents remains registered in the name of a Lender and/or a Secured Party after it has ceased to be a Lender and/or a Secured Party then the Collateral Agent shall remain empowered to execute a release of such security in its name and on its behalf; (v) undertakes to ratify and approve any such action taken in the name and on behalf of the Secured Parties by the Collateral Agent acting in its appointed capacity; and (vi) consents to the possibility for the Collateral Agent to delegate and sub- delegate any of its powers under this clause including by appointing third parties agents and/or representatives.
(bg)Each of the Secured Parties (for itself and on behalf of its Affiliates) designates and appoints the Collateral Agent as its representative (vertegenwoordiger/représentant) within the meaning of (a) Article 5 of the Belgian Act of 15 December 2004 on financial collateral arrangements and several tax dispositions in relation to security collateral arrangements and loans of financial instruments, as amended from time to time, to create, register, manage and/or enforce on its behalf any Security created by a Security Document governed by Belgian law constituting financial collateral; and (b) Article 3 of Book III, Title XVII of the Belgian Civil Code.
11.21.[Reserved].
11.22.Limitation of Duties and Immunities. The Administrative Agent and the Collateral Agent shall not have any duties or obligations except those expressly set forth herein. Without limiting the generality of the foregoing, (a) the Administrative Agent and the Collateral Agent shall not be subject to any fiduciary or other implied duties or be held to be a trustee or fiduciary for any Secured Party, regardless of whether a Default or Unmatured Default has occurred and is continuing,
(b)the Administrative Agent and the Collateral Agent (as applicable) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Administrative Agent and the Collateral Agent are required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as required hereunder); provided that the Administrative Agent and Collateral Agent shall not be required to take any action that, in their opinion or the opinion of its counsel, may expose the Administrative Agent or Collateral Agent (as applicable) to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law;,
(c)except as expressly set forth herein, the Administrative Agent and the Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any of its Subsidiaries that is communicated to or obtained by the Administrative Agent, the Collateral Agent or any of their Affiliates in any capacity, (d) the Collateral Agent reserves the right to conduct a Phase I environmental assessment prior to foreclosing on any real estate Collateral or mortgage Collateral, (e) the Collateral Agent reserves the right to forebear from foreclosing in its own name if to do so may expose it to undue risk, (f) in the event that, following a foreclosure in respect of any Collateral, the Collateral Agent acquires title to any portion of such Collateral or takes any managerial action of any kind in regard thereto in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the
Collateral Agent to be considered an “owner or operator” under the provisions of CERCLA or otherwise cause the Collateral Agent to incur liability under CERCLA or any other Federal, state or local law, the Collateral Agent reserves the right, instead of taking such action, to either resign as Collateral Agent or arrange for the transfer of the title or control of the asset to a court appointed receiver, (g) neither the Administrative Agent nor the Collateral Agent (as applicable) shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent, Collateral Agent or any of its Affiliates in any capacity; and (h) the duties or obligations of the Administrative Agent and Collateral Agent shall be solely mechanical and administrative in nature. The Administrative Agent and the Collateral Agent shall not be liable for any action taken or not taken by it with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 8.2.1) or in the absence of its own gross negligence or willful misconduct. The Administrative Agent and the Collateral Agent shall each be deemed not to have knowledge of any Default or Unmatured Default unless and until written notice stating such notice is a notice of an Unmatured Default or Default thereof is given to the Administrative Agent by the Company or a Lender, and the Administrative Agent and the Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, (ii) the contents of any certificate, report or other document delivered hereunder or in connection herewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent.
11.23.Reliance on Third Parties. Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing believed by it to be genuine and to have been signed or sent by the proper Person. Each Agent also may rely upon any statement made in writing and believed by it to be made by the proper Person, and shall not incur any liability for relying thereon. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
11.24.Sub-Agents. Each Agent may perform any and all its duties and exercise its rights and powers by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all its duties and exercise its rights and powers through their respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent, the Collateral Agent and any such sub- agent, and shall apply to their respective activities as Administrative Agent or Collateral Agent, as applicable.
11.25.Successor Agent. Any Agent may resign upon 30 days’ notice by notifying the Lenders and the Company. Upon any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor from among the Lenders that is a bank with an office in New York, New York, or an Affiliate of any such bank. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may, on behalf of the Lenders, appoint a successor Administrative Agent or Collateral Agent, as applicable, which shall (unless an Event of Default shall have occurred and be continuing) be subject to approval by the Borrower. Upon the acceptance of its appointment as Agent hereunder by a successor, such successor shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent. Whether or not a successor has been appointed such resignation shall become effective in accordance with the notice given by the Agent and the retiring Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After an Agent’s resignation hereunder, the provisions of this Article and Section 10.6 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while it was acting as Administrative Agent or Collateral Agent, as applicable. Notwithstanding the above, no successor Agent shall be incorporated, domiciled, established or acting though an office in a Non-Cooperative Jurisdiction without the prior consent of the Borrowers.
11.26.Independent Credit Decisions. Each Lender acknowledges that it has, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and each Lender also acknowledges that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any related agreement or any document furnished hereunder or thereunder. Each Lender acknowledges and agrees that the extensions of credit made hereunder are commercial loans and letters of credit and not investments in a business enterprise or securities.
11.27.Arrangers. No Arranger shall any obligations or duties whatsoever in such capacity under this Agreement or any other Loan Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
11.28.Permitted Release of Collateral and Guarantors.
(bh)Automatic Release. If any Collateral is the subject of a Disposition (other than to another Loan Party) which is permitted under Section 6.14, the Liens in such Collateral granted under the Loan Documents shall automatically terminate with respect to such Collateral, and such Collateral will be disposed of free and clear of all such Liens.
(bi)Written Release. The Collateral Agent is authorized to release of record, and shall release of record, any Liens encumbering any Collateral that is the subject of a Disposition described in clause (a) above upon an authorized officer of the Company certifying in writing to the Collateral Agent that the proposed Disposition of Collateral is not to a Loan Party and is permitted under Section 6.14. To the extent the Collateral Agent is required to execute any release documents in accordance with the immediately preceding sentence, the Collateral Agent shall do so promptly upon request of the Company without the consent or further agreement of any Secured Party. If the Disposition of Collateral is not permitted under or pursuant to the Loan Documents, the Liens encumbering the Collateral may only be released in accordance with the other provisions of this Section 11.9 or the provisions of Section 8.2.
(bj)Other Authorized Release and Subordination. The Collateral Agent is irrevocably authorized by the Secured Parties, without any consent or further agreement of any Secured Party to: (i) subordinate or release the Liens granted to the Collateral Agent to secure the Obligations with respect to any Property which is permitted to be subject to a Lien of the type described in clauses (c), (d) and (f) of the definition of Permitted Encumbrances and clause (vii) of Section 6.16, (ii) release the Collateral Agent’s Liens upon the termination in full of the Commitments and the
repayment in full of all Obligations (other than contingent indemnity or reimbursement obligations for which no claim has been asserted) and (iii) release the Collateral Agent’s Liens upon any Collateral that becomes an Excluded Asset; provided, that if as of the date of the requested release under clause (i): (A) the Company is subject to a proceeding of the type described in Section 7.6 or 7.7, or (B) the Collateral Agent is applying the proceeds of Collateral in accordance with Section 2.10(b), then the Collateral Agent shall not release its Liens until the termination in full of the Commitments and the repayment in full of all Obligations.
(bk)Authorized Release of Guarantors. If the Administrative Agent shall have received a certificate of an Authorized Officer of the Company requesting the release of a Guarantor, certifying that the Administrative Agent is authorized to release such Guarantor because (x) the Capital Stock issued by such Guarantor have been disposed of to a Person other than a Loan Party in a transaction permitted by Section 6.14 (or with the consent of the Required Lenders pursuant to Section 8.2)) or (y) such Guarantor is no longer required to provide a guaranty pursuant to Section 2.18 (including, but not limited to, the release upon or after the Closing Date of any Guarantor that is an Excluded Subsidiary), then the Collateral Agent is irrevocably authorized by the Secured Parties, without any consent or further agreement of any Secured Party to release the Liens granted to the Collateral Agent to secure the Obligations in the assets of such Guarantor and release such Guarantor from all obligations under the Loan Documents; provided that no such release shall occur if such Guarantor continues to be a guarantor in respect of any 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing Term Loans and/or the ABL Facility or any Permitted Refinancing Indebtedness of any of the foregoing; provided, further, that notwithstanding anything to the contrary herein, no Guarantor shall be released from its obligations under the Loan Documents solely by reason of such Guarantor ceasing to be a Wholly Owned Subsidiary unless either (x) it is no longer a direct or indirect Subsidiary of the Company or (y) such Guarantor ceases to be a Wholly Owned Subsidiary as a result of a sale, issuance or transfer of Equity Interests to a Person that is not an Affiliate of the Company and such sale or transfer is made for a bona fide business purpose of the Company and its Subsidiaries and not for the primary purpose of evading the requirements of Sections 2.18, 6.9 and 6.12. To the extent the Collateral Agent is required to execute any release documents in accordance with the immediately preceding sentence, the Collateral Agent shall do so promptly upon request of the Company without the consent or further agreement of any Secured Party.
(bl)Intercreditor Arrangements.
(i)Each Agent is authorized to enter into or amend any intercreditor or subordination agreement with respect to Indebtedness (including the Intercreditor Agreements) that is (i) required or permitted to be subordinated hereunder and/or (b) secured by Liens (other than Liens on Collateral (other than ABL Priority Collateral) contemplated to rank senior or on an equal priority basis with the Liens securing the Obligations) and which Indebtedness contemplates or would necessitate an intercreditor, subordination or collateral trust agreement (any such agreement, an “Additional Agreement”), and the Secured Parties acknowledge that the Additional Agreements are binding upon them. Each Secured Party (a) agrees that it will be bound by, and will not take any action contrary to, the provisions of any Additional Agreement and (b) hereby authorizes and instructs the Administrative Agent and the Collateral Agent to enter into the Additional Agreements and to subject the Liens on the Collateral securing the Obligations to the provisions thereof.
(ii)The Administrative Agent is expressly instructed by each Lender to enter into the ABL Intercreditor Agreement in its capacity as Extended Term Administrative Agent (as defined in the ABL Intercreditor Agreement) and on behalf of each Lender, and thereby to irrevocably appoint the European Collateral Agent (as defined in the ABL Intercreditor Agreement), on behalf of itself and each Lender, to serve as collateral agent in respect of the Foreign Collateral (as defined in the ABL Intercreditor Agreement) (other than Collateral located in or otherwise governed by the laws of France or any province or territory of Canada) pursuant to the terms of the ABL Intercreditor Agreement.
11.29.Perfection by Possession and Control. The Collateral Agent hereby appoints each of the other Lenders to serve as bailee to perfect the Collateral Agent’s Liens in any Collateral (other than deposit, securities or commodity accounts) in the possession of any such other Lender and each Lender possessing any such Collateral agrees to so act as bailee for the Collateral Agent in accordance with the terms and provisions hereof.
11.30.Lender Affiliates Rights. By accepting the benefits of the Loan Documents, any Person (other than a party hereto) (a “non-Party Secured Party”) that is owed any Obligation is bound by the terms of the Loan Documents. But notwithstanding the foregoing: (a) neither any Agent, any Lender nor any Loan Party shall be obligated to deliver any notice or communication required to be delivered to any Lender under any Loan Documents to any non-Party Secured Party and (b) no non-Party Secured Party that is owed any Obligation shall be included in any voting determinations under the Loan Documents or entitled to consent to, reject, or participate in any manner in any amendment, waiver or other modification of any Loan Document. No Agent shall have any liabilities, obligations or responsibilities of any kind whatsoever to any non-Party Secured Party who is owed any Obligation. The Agents shall deal solely and directly with the parties to the Loan Documents in connection with all matters relating to the Loan Documents. The Obligation owed to any non-Party Secured Party that is an Affiliate of a Lender (or a Person that was a Lender at the time of designation of any such obligation as an Obligation) shall be considered the Obligation of its
related Lender for all purposes under the Loan Documents and such Lender shall be solely responsible to the other parties hereto for all the obligations of such Affiliate under any Loan Document.
11.31.Quebec Hypothecary Representative. Without limiting the powers of the Collateral Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Quebec to secure the prompt payment and performance of any and all Obligations by any Loan Party, each of the Secured Parties hereby irrevocably appoints and authorizes the Collateral Agent and, to the extent necessary, ratifies the appointment and authorization of the Collateral Agent, to act as the hypothecary representative of the present and future Secured Parties as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec and applicable law. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and
(b) benefit from and be subject to all provisions hereof with respect to the Administrative Agent and Collateral Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Secured Parties and the Loan Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Assumption, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of the Collateral Agent pursuant to the provisions of this Article XI also constitute the substitution of the Attorney.
11.32.Actions in Concert. Notwithstanding anything contained in any of the Loan Documents, the Company, each Agent and each Lender hereby agree that (A) no Secured Party shall have any right individually to realize upon any of the Collateral under any Security Documents or to enforce the guarantee set forth in any Guaranty, it being understood and agreed that all powers, rights and remedies under any Guaranty and the Security Documents may be exercised solely by the Administrative Agent or the Collateral Agent (as applicable) (acting at the direction of the Required Lenders) for the benefit of the Secured Parties in accordance with the terms thereof and (B) in the event of a foreclosure by the Collateral Agent (acting at the direction of the Required Lenders) on any of the Collateral pursuant to a public or private sale, the Collateral Agent or any Lender may be the purchaser of any or all of such Collateral at any such sale and the Collateral Agent, as agent for and representative of the Secured Parties (but not any Secured Party in its or their respective individual capacities unless the Required Lenders shall otherwise agree in writing), shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold in any such public sale, to use and apply any of the Obligations as a credit on account of the purchase price for any Collateral payable by the Collateral Agent at such sale.
11.33.Additional Exculpatory Provisions.
(bm)Neither the Administrative Agent nor the Collateral Agent:
(iii)shall be liable for any action taken or not taken by it, in each case, in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. The Administrative Agent and Collateral Agent shall be deemed not to have knowledge of any Unmatured Default or Default unless and until notice describing such Unmatured Default or Default is given to the Administrative Agent and Collateral Agent in writing by the Company or a Lender;
(iv)shall be responsible for or have any duty to ascertain or inquire into: (1) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (2) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (3) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Unmatured Default or Default; (4) the sufficiency, validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document (5) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to ensure that any Liens granted to the Collateral Agent pursuant to this Agreement or any other Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, or (6) the satisfaction of any condition set forth in Article IV or elsewhere herein or any other Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or the Collateral Agent. Neither the Administrative Agent nor the Collateral Agent shall have any responsibility, for or liability with respect to, monitoring compliance of any other party to the Loan Documents or any other document related hereto or thereto. Neither the Administrative Agent nor the Collateral Agent shall have any duty to monitor the value or rating of any Collateral on an ongoing basis. Other than in respect of legal or arbitration proceedings relating to the perfection, preservation or protection of rights under the Collateral Documents or enforcement of the Collateral or Collateral Documents, the Administrative Agent and Collateral Agent are not authorized to act on behalf of a Lender (without first obtaining that Lender’s prior written consent) in any legal or arbitration proceedings relating to this Agreement or any Loan Document;
(v)shall be accountable for the use or application by any Person of disbursements properly made by the Administrative Agent or the Collateral Agent in conformity with the provisions of the Loan Documents or of moneys received from the Loan Parties; or
(vi)shall be required to take any action, perform any duties or responsibilities or exercise any rights, powers, authorities or discretions that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose it to liability (financial or otherwise) or that is contrary to any Loan Document or applicable law (for the avoidance of doubt, the Administrative Agent and Collateral Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Loan Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions).
(bn)The Collateral Agent and the Administrative Agent shall be entitled to request written instructions, or clarification of any instruction, from the Required Lenders (or, if the relevant Loan Document stipulates the matter is a decision for any other Lender or group of Lenders, from that Lender or group of Lenders) as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion and the Collateral Agent and the Administrative Agent may refrain from acting unless and until it receives those written instructions or that clarification. In the absence of written instructions, the Collateral Agent and the Administrative Agent, as applicable, may act (or refrain from acting) as it considers to be in the best interests of the Lenders. If in the administration of the Loan Documents the Administrative Agent and the Collateral Agent shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, such Agent (unless other evidence shall be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon instructions from the Required Lenders.
(bo)In no event shall the Administrative Agent or the Collateral Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
(bp)None of the Administrative Agent or the Collateral Agent shall be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created hereunder or pursuant to any other security documents pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other security document pertaining to this matter.
(bq)Beyond the exercise of reasonable care in the custody thereof, the Collateral Agent shall have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and the Collateral Agent shall not be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. The Collateral Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
11.34.Appointment of the Collateral Agent for French Law Security Documents.
(br)Each Secured Party (other than the Collateral Agent) hereby irrevocably and unconditionally appoints GLAS AMERICAS LLC, a New York limited liability company , having its registered office at 3 Second Street, Suite 206, Jersey City, NJ 07311 and whose registered number is 4851551, as Collateral Agent (agent des sûretés), pursuant to articles 2488-6 to 2488-12 of the French Civil Code, in respect of the Security Documents and the Collateral governed by French law in order to take, register, manage and enforce the Collateral created or purported to be created under the Security Documents governed by French law. As a result:
(vii)the Collateral Agent shall be the title owner (titulaire) of the guarantees and Collateral created or purported to be created under the Loan Documents and the rights and assets acquired by the Collateral Agent in carrying out its functions shall form a dedicated estate, distinct from the Collateral Agent’s own estate;
(viii)in respect of the Security Documents and the Collateral governed by French law, the Collateral Agent shall act in its own name for the benefit of the Secured Parties; and
(ix)the Collateral Agent shall identify itself as such when acting in such capacity.
(bs)The Collateral Agent shall act in accordance with the powers given to it by law and by the Loan Documents. If at any time, the Collateral Agent is required to take any action in respect of the Security Documents and
the Collateral governed by French law (i) which is outside the scope of the powers granted to it by law or (ii) at a time when its appointment under Section 11.15(a) is terminated as a result of a pledge enforcement, then the Collateral Agent shall act as agent (mandataire) of each relevant Secured Party (as mandant).
(bt)The Collateral Agent hereby accepts the appointments under Sections 11.15(a) and 11.15(b).
(bu)The Collateral Agent shall solely act in its capacity as Collateral Agent or for itself (as Secured Party).
(bv)Any change of Collateral Agent appointed pursuant to this Section 11.15 (Appointment of the Collateral Agent for French Law Security Documents) shall be made in accordance with Section 11.6 (Successor Agent) (remplacement conventionnel) or in accordance with article 2488-11 of the French Civil Code (remplacement judiciaire).
(bw)Each Secured Party:
(x)confirms its approval of the Security Documents and Collateral and irrevocably authorizes, empowers and directs the Collateral Agent to execute the Security Documents and to take any steps, and gather any information, in connection with the preparation of the Security Documents and the perfection, preservation and/or enforcement of the Collateral;
(xi)irrevocably authorises, empowers and directs the Collateral Agent to perform the duties and exercise the rights, powers and discretions that are specifically entrusted to it under the Loan Documents, together with any other rights, powers and discretions which are incidental thereto, and to give a good discharge for any moneys payable under the Security Documents; and
(xii)acknowledges and confirms that the Collateral Agent is entitled to take any step to protect the interests of the Secured Parties; however, notwithstanding the provisions of article 2488-9 of the French Civil Code, the Collateral Agent shall not be bound to make the filing of any proof of claim for the benefit of any Secured Party, unless otherwise agreed between the Collateral Agent and that Secured Party.
(bx)Notwithstanding any contrary provision in this agreement, or any other Loan Document:
(xiii)the Collateral Agent shall not hold the benefit of the Security Documents governed by French law on trust but as agent des sûretés;
(xiv)no Obligor incorporated in France shall undertake to pay any Parallel Debt pursuant to Section 17.1 (Parallel Debt; Parallel Debt owed to the Collateral Agent) and the Security Documents governed by French law shall not secure any Parallel Debt; and
(xv)no appointment of additional collateral agent or delegation of powers by the Collateral Agent shall be made in respect of the Security Documents governed by French law for those rights and duties which benefit to or are imposed on the Collateral Agent by operation of articles 2488-6 to 2488-12 of the French Civil Code.
11.35.Certain Acknowledgement of Lenders.
(by)Each Lender hereby agrees that (x) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent at the greater of the NYFRB Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to such Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this Section 11.16 shall be conclusive, absent manifest error.
(bz)Each Lender hereby further agrees that if it receives a Payment from any Agent or any of its Affiliates
(x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds,
together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent at the greater of the NYFRB Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(ca)The Company and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the applicable Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Company or any other Loan Party except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from the Company.
(cb)Each party’s obligations under this Section 11.16 shall survive the resignation or replacement of any Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
11.36.Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent
and each of its Affiliates, and each of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents and sub- agents, to the extent that such Agent shall not have been reimbursed by any Loan Party (but without limiting such Loan Party’s reimbursement obligations hereunder), for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including fees and disbursements of financial and legal advisors) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent or any of its Affiliates, or any of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents or sub-agents, in exercising its powers, rights and remedies or performing its duties hereunder or under the other Loan Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Loan Documents; provided no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided in no event shall this sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. Without limiting the foregoing, each Lender agrees to reimburse the Agents promptly upon demand for its ratable share of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the Agents in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Loan Documents, to the extent that the Agents are not reimbursed for such expenses by the Company or another Loan Party. Amounts payable pursuant to this Section 11.17 shall be payable on demand.
11.37.Collateral and Intercreditor Matters.
(cc)Notwithstanding anything to the contrary herein, it is understood and agreed that prior to the termination in full of the Commitments (as defined in the Superpriority Term Loan Facility) and payment in full of all Obligations (as defined in the Superpriority Term Loan Facility) (in each case, other than in connection with a Permitted Refinancing of the Superpriority Term Loan Facility), to the extent that the Superpriority Term Loan Facility Collateral Agent is satisfied with or agrees to any deliveries or documents required to be provided in respect of any matters relating to the Collateral or makes any determination in respect of any matters relating to the Collateral (including, without limitation, extensions of time or waivers for the creation and perfection of security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets (including in connection with assets acquired, or Subsidiaries formed or acquired, after the Issue Date), the Collateral Agent shall be deemed to be satisfied with such deliveries and/or documents and the judgment of the Superpriority Term Loan Facility Collateral Agent in respect of any such matters under the Superpriority Term Loan Facility shall be deemed to be the judgment of the Collateral Agent (acting at the direction of the Required Lenders) in respect of such matters under this Agreement and the Security Documents.
(cd)Notwithstanding anything herein to the contrary, (i) the liens and security interests granted to the Collateral Agent on the Shared Collateral (as defined in the Multi Lien Intercreditor Agreement) are expressly subject and subordinate to the liens and security interests granted in favor of the First Priority Secured Parties (as defined in the Multi Lien Intercreditor Agreement), and (ii) the exercise of any right or remedy by the Collateral Agent or any other party hereunder in respect of such Shared Collateral is subject to the limitations and provisions of the Multi Lien Intercreditor Agreement. In the event of any conflict between the terms of the Multi Lien Intercreditor Agreement and the terms of this Agreement, the terms of the Multi Lien Intercreditor Agreement shall govern.
11.38.UK Security Trustee.
(ce)Notwithstanding any other provision of this Agreement, each Secured Party (including each Lender, on behalf of itself and any of its Affiliates that are Secured Parties) irrevocably appoints the Collateral Agent to act as its trustee under and in connection with each Security Document governed by the laws of England and Wales on the terms and conditions set out in any such Security Document to hold the assets subject to the security thereby created as trustee for the Secured Parties on the trusts and other terms contained in any such Security Document and the ABL Intercreditor Agreement. Each of the Secured Parties authorizes the Collateral Agent to exercise the rights, remedies, power and discretions, specifically given to Collateral Agent under or in respect of the Security Documents governed by the laws of England and Wales, together with any rights, remedies, power and discretions, incidental thereto. In addition, when acting in the capacity of trustee for the Secured Parties, the Collateral Agent shall have all the rights, remedies, protections and benefits of and in favor of the Collateral Agent contained in this Article XI. Any reference in this Agreement to Liens stated to be granted by an English Loan Party in favor of the Collateral Agent shall be construed so as to include a reference to Liens granted in favor of the Collateral Agent in its capacity as security trustee of the Secured Parties on the trusts and other terms contained in any Security Document governed by the laws of England and Wales and the ABL Intercreditor Agreement.
(cf)Nothing in this Article XI shall require the Collateral Agent to act as a trustee at common law or to hold any property on trust in any jurisdiction outside the United States or England and Wales that may not operate under principles of trust or where such trust would not be recognized or its effects would not be enforceable.
The agreements in this Article XI shall survive the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
ARTICLE XII
SETOFF; ADJUSTMENTS AMONG LENDERS
12.3.Setoff. In addition to, and without limitation of, any rights of the Lenders under applicable law, if any Default occurs and is continuing, any and all deposits (including all account balances, whether provisional or final and whether or not collected or available) and any other Indebtedness at any time held or owing by any Lender to or for the credit or account of the Company may be offset and applied toward the payment of the Obligations owing by the Company; provided, that if any Defaulting Lender shall exercise such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.17 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. Each Lender agrees promptly to notify the Company and the Administrative Agent after any such setoff and application made by such Lender, provided that the failure to give such notice shall not affect the validity of such setoff and application.
12.4.Ratable Payments. If any Lender, whether by setoff or otherwise, has payment made to it upon its Obligations owing from the Company (other than payments received pursuant to Section 3.2, 3.3, 3.4, 10.6 or as otherwise expressly set forth in this Agreement) in a greater proportion than that received by any other Lender on its Obligations owing from the Company, such Lender agrees, promptly upon demand, to purchase a portion of the Advances to the Company held by the other Lenders so that after such purchase each Lender will hold its ratable proportion of Advances to the Company. If any Lender, whether in connection with setoff or amounts which might be subject to setoff or otherwise, receives any protection for its Obligations or such amounts which may be subject to setoff from or with respect to the Company, such Lender agrees, promptly upon demand, to take such action necessary such that all Lenders share in the benefits of such protection ratably in proportion to their Obligations owing by the Company. In case any such payment is disturbed by legal process, or otherwise, appropriate further adjustments shall be made.
ARTICLE XIII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
13.3.Successors and Assigns.
(cg)The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that (i) the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Company without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to
the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, the Collateral Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(ch)(i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more assignees, other than an Ineligible Person or a Disqualified Lender, all or a portion of its rights and obligations under this Agreement (including all or a portion of any of its Commitments and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld or delayed) of (A) the Company, provided that no consent of the Company shall be required for an assignment to a Lender, an Affiliate of a Lender, an Approved Fund or, if a Default under 7.2, 7.6 or 7.7 has occurred and is continuing, any other assignee, and provided, further, that the Company shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof and (B) the Administrative Agent, provided that no consent of the Administrative Agent shall be required for an assignment of any Term Loans to a Lender, an Affiliate of a Lender or an Approved Fund.
(xvi)Assignments shall be subject to the following additional conditions:
(A)except in the case of an assignment to a Lender or an Affiliate of a Lender or an assignment of the entire remaining amount of the assigning Lender’s Commitment or Loans of any Class, the amount of such Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than the Dollar Equivalent Amount of $1,000,000 unless each of the Company and the Administrative Agent otherwise consent, provided that no such consent of the Company shall be required if a Default under Sections 7.2, 7.6 or 7.7 has occurred and is continuing or if the assignment is to another Lender or an Affiliate of a Lender;
(B)each partial assignment shall be made as an assignment of a proportionate part of all the
assigning Lender’s rights and obligations under this Agreement with respect to any Class of Commitments or Loans;
(C)the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together (unless waived by the Administrative Agent in its sole discretion) with a processing and recordation fee of $3,500;
(D)the assignee, if it has not already done so, shall deliver to the Administrative Agent any tax forms required by Section 3.4(f) and an Administrative Questionnaire in which the assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company and its related parties or their respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable laws, including Federal and state securities laws; and
(E)the assignee shall not be incorporated, domiciled or acting through a lending office in a Non- Cooperative Jurisdiction without the prior consent of the Borrowers.
For the purposes of this Section 13.1, the term “Approved Fund” has the following meaning:
“Approved Fund” means any Person (other than a natural person) that is engaged in making, purchasing, holding or investing in bank loans and similar extensions of credit in the ordinary course of its business and that is administered, managed, underwritten, advised or subadvised by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers, manages or subadvises a Lender.
(xvii)Notwithstanding anything to the contrary herein, a Term Lender of any Class may assign all or any portion of its Term Loans hereunder to the Company or any of its Subsidiaries, but only if (a) any such proposed purchase of Term Loans shall be made pursuant to customary Dutch auction procedures open to all Term Lenders of such Class on a pro rata basis to terms to be agreed by the Administrative Agent (such agreement not to be unreasonably withheld, conditioned or delayed), (b) no Default or Unmatured Default has occurred and is continuing at the time of such assignment, (c) the consideration for any such proposed purchase is cash and (d) such Term Loans are automatically and permanently cancelled immediately upon the effectiveness of such assignment and are thereafter no longer be outstanding for any purpose hereunder.
(xviii)Subject to acceptance and recording thereof pursuant to paragraph (b)(v) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, subject to paragraph (d) of this Section, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of Sections 3.2, 3.3, 3.4 (subject to the requirements and limitations of
Section 3.4) and 10.6 and the obligations of Section 10.9 with respect to Information (as defined in such Section) received by it while a Lender). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 13.1 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section.
(xix)The Administrative Agent shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount of and stated interest on the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest
error, and the Company, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Company and any Lender, at any reasonable time and from time to time upon reasonable prior notice.
(xx)Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire and any tax forms required by
Section 3.4(f) (unless the assignee shall already have provided such forms), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee is a Defaulting Lender, the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
(xxi)Notwithstanding anything to the contrary herein, to the extent a transfer of rights and obligations by a Lender hereunder could be construed as a novation within the meaning of articles 1329 et seq. of the French Civil Code, each party thereto agrees that upon a transfer or assignment under paragraph (b) of this Section 13.1 any Collateral governed by French law or created under the French Collateral Documents shall be preserved (réservée) and maintained in full force and effect for the benefit of the Collateral Agent, the assignee and the remaining Secured Parties pursuant to articles 1334 and seq. of the French Civil Code.
(ci)Any Lender may, without the consent of the Company or the Administrative Agent, sell participations to one or more banks or other entities, other than an Ineligible Person or, to the extent a list thereof has been posted by the Administrative Agent to all the Lenders, Disqualified Lenders (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged, (i) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (ii) the Company, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the second proviso to Section 8.2.1 that affects such Participant. Subject to paragraph (d) of this Section, the Company agrees that each Participant shall be entitled to the benefits of Sections 3.2,
3.3 and 3.4 (subject to the requirements and limitations therein, including the requirements under Section 3.4(f) (it being understood that the documentation required under Section 3.4(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section, except as provided under Section 13.1(d). To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.1 as though it were a Lender, provided such Participant agrees to be subject to Section 12.2 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Company, maintain a register on which it enters the name and address of each Participant
and the principal amounts of and stated interest on each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a
Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
(cj)No Participant shall be entitled to receive any greater payment under Section 3.2 or 3.4 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or other central banking authority, and this Section shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
(ck)For the purposes of and pursuant to Article 1263 of the Italian Civil Code, it is hereby expressly agreed that, in the event of any transfer of rights or obligations or sub-participation made by a Lender under this Section 13.1 (Successors and Assigns), the guarantee granted by each Italian obligor shall be preserved for the benefit of any new Lender and each other Lender in accordance with the terms of the Loan Documents.
(cl)For the purposes of Article 1407, paragraph 1, of the Italian Civil Code, each of the parties provides its consent to the transfer (cessione), in whole or in part, by any existing lender of its contractual position (i.e., its rights and obligations) under this Agreement and the other Loan Documents in favour of any new Lender and agrees that upon transfer, in accordance with a transfer certificate and this Section 13.1 (Successors and Assigns), the guarantees and security interests created under the Loan Documents shall be preserved, without novation (novazione), for the benefit of any new Lender.
(cm)Notwithstanding anything to the contrary herein, to the extent a transfer of rights and obligations by a Lender hereunder could be construed as a novation within the meaning of articles 1329 et seq. of the French Civil Code, each party thereto agrees that upon a transfer or assignment under paragraph (b) of this Section 13.1 any Collateral governed by French law or created under the French Collateral Documents shall be preserved (réservée) and maintained in full force and effect for the benefit of the Collateral Agent, the assignee and the remaining Secured Parties pursuant to articles 1334 and seq. of the French Civil Code.
(cn)At the request of the Administrative Agent and the cost of the assignee, the assignee and the existing Lender shall promptly elevate the duly completed assignment agreement to the status of Spanish Public Document.
Any Loan Party incorporated under the laws of Spain and the other parties irrevocably agree that, in the event of any transfer and/or assignment pursuant to this clause the security interest created by, together with all rights and remedies arising under, the Spanish Collateral Agreements entered into by each Guarantor incorporated under the laws of Spain party thereto shall be maintained in full force and effect. In particular, the Guarantors incorporated under the laws of Spain undertake to take all steps necessary to preserve the security interest created in favour of the Collateral Agent for the benefit of the Lenders by the Spanish Collateral Agreements, including, but not limited to, appearing before a Spanish notary public to notarise the relevant amendments to such Spanish Collateral Agreements.
(co)Each Guarantor incorporated under the laws of Spain, accepts all transfers or assignments made by the Lenders under this Agreement without requiring any formalities, including, without limitation, the notification to the Guarantor of the relevant transfer or assignment, or the execution of any transfer or assignment document as a Spanish Public Document in Spain or the notarisation of the relevant document in any other country.
13.4.Dissemination of Information. The Company authorizes each Lender to disclose, solely in compliance with applicable laws, to any Participant or potential assignee or any other Person acquiring an interest in the Loan Documents by operation of law (each a “Transferee”) and any prospective Transferee any and all information in such Lender’s possession concerning the Loan Documents and the creditworthiness of the Company and its Subsidiaries (including the Disqualified Lender list), provided that each Transferee and prospective Transferee agrees to be bound by Section 10.9.
ARTICLE XIV
NOTICES
14.3.Notices. Except as otherwise permitted by Section 2.11 with respect to Borrowing Notices, all notices, requests and other communications to any party hereunder shall be in writing (including electronic transmission, facsimile transmission or similar writing) and shall be given to such party:
(cp)in the case of the Company to:
Diebold Nixdorf, Incorporated 5995 Mayfair Road
North Canton, Ohio 44720-1507 Attention: Vice President & Treasurer Telecopy No.: 330-490-6823
Telephone: 330-490-6713
E-mail: james.barna@dieboldnixdorf.com with a copy to:
Sullivan & Cromwell 125 Broad Street
New York, New York 10004 Attention: Ari Blaut Telephone: (212) 558-1656
E-mail: blauta@sullcrom.com
(cq)in the case of the Administrative Agent to for matters other than Euro Term Loans: JPMorgan Chase Bank, N.A.
131 S. Dearborn St., Floor 04
Chicago, IL, 60603-5506
Attention: Loan and Agency Servicing Email: jpm.agency.cri@jpmorgan.com
Agency Withholding Tax Inquiries:
Email: agency.tax.reporting@jpmorgan.com
Agency Compliance/Financials/Intralinks:
Email: covenant.compliance@jpmchase.com
for matters relating to Euro Term Loans:
JPMorgan Chase Bank 25 Bank Street, Canary Wharf, London, E14 5JP U.K.
Attention: Alston Lobo and Mengkang Pan Loan and Agency
Telecopy: +44 (0) (207) 777-2360
Telephone: +44 (0) (207) 742-1000 (switchboard)
Email: loan_and_agency_london@jpmorgan.com
(cr)in the case of the Collateral Agent to:
GLAS Americas LLC
Address: 3 Second Street, Suite 206 Jersey City, NJ 07301
Attention: Transaction Management Telephone: +1 (201) 839 2181
Email: TMGUS@glas.agency; clientservices.americas@glas.agency
(cs)in the case of any Lender, at its address or e-mail address set forth in its Administrative Questionnaire or as otherwise established pursuant to an Assignment and Assumption (and the related Administrative Questionnaire); or
(ct)in the case of any party, at such other address or e-mail address as such party may hereafter specify for the purpose by notice to the Administrative Agent, the Collateral Agent and the Company in accordance with the provisions of this Section 14.1.
Each such notice, request or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid, (ii) if given by electronic transmission, when transmitted and received (with an appropriate confirmation of receipt of delivery and during normal business hours), all pursuant to procedures approved by the Administrative Agent, provided that the approval of such procedures may be modified or revoked by the Administrative Agent from time to time with reasonable prior notice to the Company and may be limited to particular notices or other communications, or (iii) if given by any other means, when delivered at the address specified in this Section; provided that notices to the Administrative Agent or the Collateral Agent under Article II shall not be effective until received.
Any communication or document made or delivered to the Company in accordance with this Section 14.1 will be deemed to have been made or delivered to the Company and each Subsidiary or any other member of the Group party to a Loan Document. Each German Guarantor, for this purpose, appoints the Company as its receipt agent (Empfangsboten).
14.4.Change of Address. The Company, the Administrative Agent, the Collateral Agent and any Lender may each change the address for service of notice upon it by a notice in writing to the other parties hereto.
ARTICLE XV COUNTERPARTS
This Agreement may be executed in any number of counterparts (or in the case of Lenders, by execution of a Lender Consent as set forth in Section 4.1), all of which taken together shall constitute one agreement, and any of the parties hereto may execute this Agreement by signing any such counterpart. Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Administrative Agent and the Collateral Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic mail message shall be effective as delivery of a manually executed counterpart of this Agreement.
ARTICLE XVI
CHOICE OF LAW, CONSENT TO JURISDICTION, WAIVER OF JURY TRIAL, JUDGMENT CURRENCY
16.7.Choice of Law. This Agreement shall be construed in accordance with and governed by the law of the State of New York.
16.8.WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
16.9.Submission to Jurisdiction; Waivers.
(cu)Each party hereto hereby irrevocably and unconditionally:
(xxii)submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County and of the United States District Court of the Southern District of New York sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such New York State or, to the extent permitted by law, in such Federal court; provided, that nothing contained herein or in any other Loan Document will prevent any Lender, the Collateral Agent or the Administrative Agent from bringing any action to enforce any award or judgment or exercise any right under the Security Documents or against any Collateral or any other property of any Loan Party in any other forum in which jurisdiction can be established;
(xxiii)waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (i) of this Section;
(xxiv)agrees that service of process in any such action or proceeding may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to its address specified in Section 14.1, or (in the case of the Company) at such other address of which the Administrative Agent shall have been notified pursuant thereto;
(xxv)agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction in which the defendant is domiciled; and
(xxvi)waives, to the maximum extent not prohibited by law, any right it may have to claim or recover in any legal action or proceeding referred to in this subsection any special, exemplary, punitive or consequential damages.
(cv)Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that any party hereto may otherwise have to bring any action or proceeding relating to this Agreement against any other party or the property thereof in the courts of any jurisdiction where such party is domiciled. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.
(cw)Each Subsidiary hereby irrevocably appoints the Company as its agent for service of process in any proceeding referred to in Section 16.3(a)(i) and agrees that service of process in any such proceeding may be made by mailing or delivering a copy thereof to it care of the Company at its address for notices set forth in Section 14.1.
16.10.Acknowledgments. The Company hereby acknowledges and agrees that (a) no fiduciary, advisory or agency relationship between the Loan Parties and the Administrative Agent, Collateral Agent, Arranger or Lenders is intended to be or has been created in respect of any of the transactions contemplated by this Agreement or the other Loan Documents, irrespective of whether the Administrative Agent, Collateral Agent, Arranger or Lenders have advised or are advising the Loan Parties on other matters, and the relationship between the Administrative Agent, Collateral Agent, Arranger and Lenders, on the one hand, and the Loan Parties, on the other hand, in connection herewith and therewith is solely that of creditor and debtor, (b) the Administrative Agent, Collateral Agent, Arranger and Lenders, on the one hand, and the Loan Parties, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do the Loan Parties rely on, any fiduciary duty to the Loan Parties or their Affiliates on the part of the Administrative Agent, Collateral Agent, Arranger and Lenders,
(cx)the Loan Parties are capable of evaluating and understanding, and the Loan Parties understand and accept, the terms, risks and conditions of the transactions contemplated by this Agreement and the other Loan Documents, (d) the Loan Parties have been advised that the Administrative Agent, Collateral Agent, Arranger and Lenders are engaged in a broad range of transactions that may involve interests that differ from the Loan Parties’ interests and that the Administrative Agent, Collateral Agent, Arranger and Lenders have no obligation to disclose such interests and transactions to the Loan Parties, (e) the Loan Parties have consulted their own legal, accounting, regulatory and tax advisors to the extent the Loan Parties have deemed appropriate in the negotiation, execution and delivery of this Agreement and the other Loan Documents, (f) each Administrative Agent, Collateral Agent, Arranger and Lender has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by it and the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Loan Parties, any of their Affiliates or any other Person, (g) none of the Administrative Agent, Arranger or Lenders has any obligation to the Loan Parties or their Affiliates with respect to the transactions contemplated by this Agreement or the other Loan Documents except those obligations expressly set forth herein or therein or in any other express writing executed and delivered by such Administrative Agent, Arranger or Lender and the Loan Parties or any such Affiliate and (h) no joint venture is created hereby or by the other Loan Documents or otherwise exists by virtue of the transactions contemplated hereby among the Administrative Agent, Collateral Agent, Arranger or Lenders or among the Loan Parties and the Administrative Agent, Collateral Agent, Arranger or Lenders.
16.11.[Reserved].
16.12.Judgment.
(cy)If for the purpose of obtaining judgment in any court it is necessary to convert a sum due hereunder in one currency into another currency, the parties hereto agree, to the fullest extent that they may effectively do so, under applicable law that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency in the city in which it normally conducts its foreign exchange operation for the first currency on the Business Day preceding the day on which final judgment is given.
(cz)The obligation of the Loan Parties in respect of any sum due from them to any Lender hereunder shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by such Lender of any sum adjudged to be so due in the Judgment Currency such Lender may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency; if the amount of Agreement Currency so purchased is less than the sum originally due to such Lender in the Agreement Currency, the Company agrees notwithstanding any such judgment to indemnify such Lender against such loss, and if the amount of the Agreement Currency so purchased exceeds the sum originally due to any Lender, such Lender agrees to remit to the Company or other applicable Loan Party such excess.
ARTICLE XVII
CERTAIN ADDITIONAL MATTERS
17.9.Parallel Debt; Parallel Debt owed to the Collateral Agent. This Section 17.1 is included in this Agreement solely for the purpose of ensuring the validity and effect of certain security rights governed by the laws of the Netherlands, Poland and Germany granted or to be granted pursuant to the applicable Collateral Documents and, for the avoidance of doubt, shall not limit the rights and remedies provided to the Administrative Agent or the Collateral Agent by the other provisions hereof and the provisions of the other Loan Documents.
(a)Each of the Loan Parties hereby irrevocably and unconditionally undertakes to pay to the Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties amounts equal to any amounts owing from time to time by that Loan Party to any Secured Party under any Loan Document as and when those amounts are due for payment under the relevant Loan Document (each such payment undertaking of a Loan Party in relation to any individual Secured Party, a “Parallel Debt Undertaking”, and all Parallel Debt Undertakings of each Loan Party taken together, its “Parallel Debt”).
(b)Each of the Loan Parties and the Collateral Agent acknowledge that the obligations of each Loan Party under any Parallel Debt Undertaking are several and are separate and independent from, and shall not in any way limit or affect, the obligations of that Loan Party to that relevant Secured Party under any Loan Document that corresponds to the relevant Parallel Debt Undertaking (its “Corresponding Debt”) nor shall the amounts for which each Loan Party is liable under any Parallel Debt Undertaking be limited or affected in any way by its Corresponding Debt provided that:
(xvi)the Collateral Agent shall not demand payment with regard to the Parallel Debt Undertaking of a
Loan Party to the extent that the relevant Lender’s Corresponding Debt has been irrevocably paid or (in the case of guarantee obligations) discharged;
(xvii)a Secured Party shall not demand payment with regard to the Corresponding Debt of a Loan Party to the extent that such Loan Party’s Parallel Debt Undertaking has been irrevocably paid or (in the case of guarantee obligations) discharged.
(xviii)each Parallel Debt Undertaking shall cover, in an anticipatory manner as to its scope, any future changes in the relevant Corresponding Debt, in particular any such changes resulting from any future increase of any loan or note facility, any future extension of the agreed maturity thereof or any future change of the interest rate charged thereunder;
(xix)each Parallel Debt Undertaking shall be due and payable at any time from the date of this Agreement in an amount which equals the amount and currency or currencies of the relevant Corresponding Debt that is due and payable at the same time as the relevant Corresponding Debt; and
(xx)each Parallel Debt Undertaking shall remain effective notwithstanding any transfer or assumption of its Corresponding Debt in whole or in part to or by any third party, irrespective of whether any such transfer or assumption is effected by way of assignment or assignment and transfer by way of assumption of contract or otherwise.
(c)The Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral under the Collateral Documents granted under the Loan Documents to the Collateral Agent to secure the Parallel Debt Undertakings is granted to the Collateral Agent in its capacity as creditor of each Parallel Debt Undertaking and shall not be held on trust.
(d)All monies received or recovered by the Collateral Agent pursuant to this Section 17.1, and all amounts received or recovered by the Collateral Agent from or by the enforcement of any collateral under the Collateral Documents granted to secure any Parallel Debt Undertaking, shall be applied in accordance with this Agreement.
(e)Without limiting or affecting the Collateral Agent’s rights against the Loan Parties (whether under this Section 17.1 or under any other provision of the Loan Documents), each Lender acknowledges that:
(xxi)nothing in this Section 17.1 shall impose any obligation on the Collateral Agent to advance any sum to any Lender or otherwise under any Loan Document, except in its capacity as lender; and
(xxii)for the purpose of any vote taken under any Loan Document, the Collateral Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity as a lender.
(xxiii)For purposes of any Dutch Collateral Document, any resignation by Collateral Agent is not effective with respect to its rights under the Parallel Debt until all rights and obligations under the Parallel Debt have been assigned to and assumed by the successor agent appointed in accordance with this Agreement.
(f)The Collateral Agent will reasonably cooperate in transferring its rights and obligations under the Parallel Debt to a successor agent in accordance with this Agreement and will reasonably cooperate in transferring all rights and obligations under any Collateral Document to such successor agent. All parties to this Agreement hereby, in advance, irrevocably grant their cooperation (medewerking) to such transfers of rights and obligations by the Common Security Agent to a successor agent in accordance this Agreement.
(g)The provisions of this Section 17.1 may not apply for any Security Documents governed by French law.
17.10.Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)the effects of any Bail-in Action on any such liability, including, if applicable:
(xxiv)a reduction in full or in part or cancellation of any such liability;
(xxv)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(xxvi)the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
17.11.Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support,
through a guarantee or otherwise, for any agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
If a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a
U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
17.12.Original Issue Discount Legend. THE TERM LOANS HAVE BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE AMOUNT OF ORIGINAL ISSUE DISCOUNT AND YIELD TO MATURITY OF THE TERM LOANS MAY BE OBTAINED BY WRITING TO THE COMPANY AT ITS ADDRESS AS SPECIFIED IN THIS AGREEMENT.
17.13.Spanish Law Provisions.
17.5.1Spanish Public Document
The Company and any Spanish Loan Parties undertake to raise (i) this Agreement; (ii) the Spanish Collateral Agreements; and, (iii) at the request of the Administrative Agent, any Loan Document entered into by a Spanish Loan Party, to the status of a Spanish Public Document before a Spanish notary public within ninety (90) Business Days from the Closing Date.
Each Spanish Public Document will:
(a)have the effects established under articles 517 et seq. of the Spanish Civil Procedure Law; and
(b)may, at the decision of the Administrative Agent, include a translation into Spanish of this Clause 17.5 (Spanish law provisions).
Each party hereby expressly authorises the Administrative Agent (and any other Finance Party, as appropriate) to request and obtain from the Spanish notary public before whom any Loan Document has been formalised, any further copy of any Loan Document notarised at the cost of the requesting party.
17.1.1Spanish Civil Procedure
For the purposes of Article 572.2 of the Spanish Civil Procedure Law, all Parties expressly agree that the exact amount due at any time by the Company to the Lenders under the Loan Documents will be the amount specified in a certificate issued by the Administrative Agent (and/or any Lender) and will be based on the accounts maintained by the Administrative Agent in connection with this Agreement. For such purposes:
(c)the Administrative Agent, acting in such capacity, will open and will keep in its books a special internal account in the name of the Company, into which the Administrative Agent will debit the amounts for principal, interest (including default interest), fees, costs, expenses and other sums owed by the Company under this Agreement, and shall credit into such account all sums received by the Administrative Agent in payment of the amounts owed by the Company under this Agreement, so that the balance of the said account shall at all times reflect the amounts owed by the Company under this Agreement:
(d)in addition to the account referred to in the preceding paragraph, each of the Lenders will open and will keep on its books a special internal account to that described in the above-mentioned paragraph, in which the Lender concerned will reflect the amounts owed thereto by the Company under this Agreement, as well as the amounts paid therein by the Company, in order that the balance of such account at all times reflects the sums owed by the Company to the relevant Lender under this Agreement.
It is expressly agreed that, for the purposes of any judicial enforcement procedure against the Company or any Spanish Loan Party, any amounts owed to the Administrative Agent or to any of the Lenders will be deemed to be an amount due, liquid and payable (importe líquido y exigible).
For the purposes of article 572.2 of the Spanish Civil Procedure Law, the parties agree that the amount claimable in the event of enforcement will be the amount calculated by the Administrative Agent (or by the Lenders concerned), as set out in the preceding paragraphs. In this regard, the parties expressly acknowledge that the issue by the Administrative Agent of a certificate relating to the accounts referred to above shall preclude the subsequent issue by any of the Lenders of any certificate relating to its accounts, and that likewise the issue by any of the Lenders of any certificate relating to its account shall preclude the issue by the Administrative Agent of a certificate relating to the account of such Lender, except in the latter case where the necessary entries have been made in the relevant account in order to deduct the amounts certified individually by a Lender.
The parties hereby agree that it in order to initiate executive enforcement proceedings in Spain against any of the Company and/or Guarantors under article 517 et seq of the Spanish Civil Procedure Law it shall be sufficient (i) to establish the amount due and payable in accordance with the preceding paragraphs by the Administrative Agent, or any of the Lenders; (ii) to attach to this document both the certificate referred to in article 517.5 of the Spanish Civil Procedure Law and the settlement referred to in article 572.2 of the same law establishing the amounts claimed, together with a certificate issued by a Notary declaring that such sum claim conforms to the balance appearing on the aforementioned accounts; and (iii) that the settlement was prepared in the manner agreed by the parties in this Agreement. The said certification shall be final and conclusive for the purposes of this Agreement, except in the case of manifest error.
17.1.2Raising to Spanish Public Document
Any amendment to a Loan Document that is a Spanish Public Document shall be raised, if requested by the Administrative Agent, to the status of Spanish Public Document.
17.1.3Spanish notarial costs and expenses
The Company shall promptly on demand pay the Administrative Agent the amount of all costs and expenses, including but not limited to, notarial costs, translation costs, registration costs and tax related costs arising from the notarisation before a Spanish public notary of any Loan Document reasonably incurred by any of them.
17.1.4Spanish law personal guarantee provisions
Any personal guarantee granted under this Agreement or in accordance with it by a Guarantor incorporated under the laws of Spain will not extend to include any obligations or liabilities if to do so would cause a breach of the financial assistance prohibitions contained in articles 143 and 150 of the Spanish Companies Act.
Each Guarantor incorporated under the laws of Spain acknowledges that any personal guarantee granted under this Agreement or in accordance with it must be construed as a first demand guarantee (garantía a primer requerimiento) and not as a performance bond (fianza) and, therefore, the benefits of preference (exclusión), order (orden) and division (division) shall not be applicable.
17.14.Preservation of Belgian Collateral Documents. If any of the Secured Parties’ rights and/or obligations under any of the Loan Documents are transferred or deemed to be transferred by way of novation, the rights and prerogatives under the Belgian Collateral Documents shall be maintained in favour of the transferee and the remaining Secured Parties, in accordance with Article 1278 of the Belgian Civil Code.
17.15.Waiver of priority. The persons who become a Lender after the date of this Agreement expressly waive any priority of ranking they may have in connection with the Loan Documents pursuant to the Belgian Act of 3 August 2012 on various measures to facilitate the mobilisation of receivables in the financial sector (Wet van 3 augustus 2012 betreffende diverse maatregelen ter vergemakkelijking van de mobilisering van schuldvorderingen in de financiële sector/ Loi du 3 août 2012 relative à des mesures diverses pour faciliter la mobilisation de créances dans le secteur financier).
17.16.Special Appointment of Collateral Agent (German Collateral).
(a)For the purposes of any security provided under the German Security Documents (where “German Collateral” means any security interest created under the Security Documents governed by German law) in addition to the provision set out above, the specific provisions set out in paragraphs (b) to (f) of this Section 17.8 shall be applicable. In the case of any inconsistency, the provisions set out in paragraphs (b) to (f) of this Section 17.8 shall prevail. The provisions set out in paragraph (b) to (f) of this Section 17.8 shall not constitute a trust but a fiduciary relationship (Treuhand) within the meaning of German law.
(b)With respect to any German Collateral constituted by non–accessory (nicht akzessorische) security interests, the Collateral Agent shall hold, administer and, as the case may be, enforce or release that German Collateral in its own name, but as trustee (Treuhänder) for the account of, the Secured Parties, and shall hold, administer and, as the case may be, enforce or release that German Collateral in its own name on the basis of its own rights under Section 17.8.
(c)With respect to any German Collateral constituted by accessory (akzessorische) security interests, the Collateral Agent shall administer and, as the case may be, enforce or release that German Collateral in the name of and for and on behalf of, the Secured Parties and shall hold, administer and, as the case may be, enforce or release that German Collateral in its own name on the basis of its own rights under Section 17.8.
(d)Each Secured Party (other than the Collateral Agent) hereby instructs and authorizes the Collateral Agent (with the right of sub-delegation) to act as its agent (Stellvertreter) and in particular (without limitation) to enter into and amend any documents evidencing German Collateral and to make and accept all declarations and take all actions it considers necessary or useful in connection with any German Collateral on behalf of that Secured Party. The Collateral Agent shall further be entitled to enforce or release any German Collateral, to perform any rights and obligations under any documents evidencing German Collateral and to execute new and different documents evidencing or relating to the German Collateral.
(e)At the request of the Collateral Agent, each Secured Party shall provide the Collateral Agent with a separate written power of attorney (Spezialvollmacht) for the purposes of executing any agreements and documents or otherwise acting on their behalf. Each Secured Party hereby ratifies and approves all acts previously done by the
Collateral Agent on such secured party’s behalf.
(f)Each Secured Party which becomes a party to this Agreement ratifies and approves all acts and declarations previously done by the Collateral Agent on such Secured Party’s behalf (including, for the avoidance of doubt the declarations made by the Collateral Agent as representative without power of attorney (Vertreter ohne Vertretungsmacht) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of each Secured Party as future pledgee or otherwise).
(g)Each Secured Party hereby releases the Collateral Agent from the restrictions imposed by Section 181 German Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other law, in each case to the extent legally possible to that Secured Party. A Secured Party which is barred by its constitutional documents or by-laws from granting such exemption shall notify the Collateral Agent accordingly.
(h)The Collateral Agent accepts its appointment as agent and administrator of the German Collateral on the terms and subject to the conditions set out in this Agreement and the Secured Parties, the Collateral Agent and all other
parties to this Agreement agree that, in relation to any German Collateral, no Secured Party (other than the Collateral Agent in that capacity) shall exercise any independent power to enforce any German Collateral or take any other action in relation to the enforcement of the German Collateral, or make or receive any declarations in relation thereto.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED
By /s/ Jeffrey Rutherford Name: Jeffrey Rutherford
Title: Executive Vice President and Chief Financial Officer
| | |
[Signature Page to New Term Loan Credit Agreement] |
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By /s/ Christine Lathrop Name: Christine Lathrop
Title: Executive Director
| | |
[Signature Page to New Term Loan Credit Agreement] |
Accepted and Agreed:
GLAS AMERICAS LLC,
as Collateral Agent
By /s/ Jeffrey Schoenfeld Name: Jeffrey Schoenfeld
Title: Vice President
| | |
[Signature Page to New Term Loan Credit Agreement] |
[Lenders’ signature pages on file with the Company]
EXHIBIT A
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [Insert name of Assignor] (the “Assignor”) and [Insert name of Assignee] (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement (as defined below), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto (the “Standard Terms and Conditions”) are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below (including any guarantees included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor.
1.Assignor:
2.Assignee:
[and is an Affiliate/Approved Fund of [identify Lender]1]
3.Borrower: Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”)
4.Administrative Agent: JPMorgan Chase Bank, N.A., as the administrative agent under the Credit
Agreement
5.Credit Agreement: The Credit Agreement dated as of December [29], 2022, among the
Company, the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, restated or otherwise modified from time to time, the “Credit Agreement”).
6.Assigned Interest:
1 Select as applicable.
| | | | | | | | | | | |
Facility Assigned2 | Aggregate Amount of Term Loans for all Lenders | Amount of Term Loans Assigned | Percentage Assigned of Term Loans3 |
| $ | $ | % |
| $ | $ | % |
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The Assignee agrees to deliver (or has delivered) to the Administrative Agent (a) a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Company and its Related Parties or its respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws and (b) all tax forms required by Section 3.4 of the Credit Agreement. The Assignee agrees to hold such information confidential to the extent required by Sections 10.9 and 13.2 of the Credit Agreement.
[The Assignee has paid (or shall concurrently with the execution of this Assignment and Assumption pay) the processing and recordation fee of $3,500 to the Administrative Agent].
For the purposes of Article 1278 of the Belgian Civil Code, it is confirmed that the rights and prerogatives under the Belgian Collateral Documents shall be maintained in favour of the Assignee and the remaining Secured Parties.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: Title:
2 Fill in the appropriate terminology for the types of facilities under the Credit Agreement that are being assigned under this Assignment (e.g., “Term Loans”)
3 Set forth, to at least 9 decimals, as a percentage of the Term Loans of all Lenders thereunder.
[Consented to and]4 Accepted:
JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By Title:
[Consented to:]5
DIEBOLD NIXDORF, INCORPORATED
By Title:
4 To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.
5 To be added only if the consent of the Company is required by the terms of the Credit Agreement.
ANNEX 1
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION
1.Representations and Warranties.
1.1Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and
(b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder,
(iii) the financial condition of the Company, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Company, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement,
(ii) it satisfies the requirements, if any, specified in the Credit Agreement that are required to be satisfied by it in order to acquire the Assigned Interest and become a Lender, (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.1 thereof, as applicable, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent, the Collateral Agent or any other Lender, and (v) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by the Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Collateral Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.
2.Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date.
3.General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT B
[RESERVED]
EXHIBIT C NOTE
, 20
Diebold Nixdorf, Incorporated (“Company”), unconditionally promises to pay to
and its registered assigns (“Lender”) on or before the Term Loan Maturity Date (as defined in the Credit Agreement hereinafter referred to) for the account of its applicable Lending Installation the principal sum of ( ) in immediately available funds at the payment office of the Administrative Agent designated by the Administrative Agent to the Company, together with interest on the unpaid principal amount thereof at the rates and on the dates set forth in the Credit Agreement [and, without duplication, principal payments in the amounts and on the dates set forth in the Credit Agreement]
The Lender shall, and is hereby authorized to, record in accordance with its usual practice, the date and amount of each Term Loan, the date and amount of each principal payment and the date to which payment of this Note has been extended, provided, however, that failure to do so shall not affect the Company’s obligation to pay amounts due hereunder.
The Company expressly waives any presentments, demand, protest or notice in connection with this Note now, or hereafter, required by applicable law.
This Note is one of the Notes issued pursuant to the provisions of the Credit Agreement dated as of December [_], 2022 among the Company, the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), to which reference is hereby made for a statement of the terms and conditions under which this Note may be prepaid or its maturity date extended or accelerated. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Credit Agreement.
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
Diebold Nixdorf, Incorporated
By:
Title:
EXHIBIT D
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) Reference is hereby made to the Credit Agreement dated as of December [_], 2022, Diebold Nixdorf,
Incorporated, an Ohio corporation (the “Company”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record and beneficial owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with a certificate of its non-
U.S. person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By: Name:
Title:
Date: , 20[ ]
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record owner of the Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Term Loan(s) (as well as any Note(s) evidencing such Term Loan(s)), (iii) with respect to the extension of credit pursuant to the Credit Agreement, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a credit agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code,
(iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished the Administrative Agent and the Company with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Company and the Administrative Agent and (2) the undersigned shall have at all times furnished the Company and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF LENDER]
By: Name:
Title:
Date: , 20[ ]
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on IRS Form W-8BEN or W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that
(1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: Name:
Title:
Date: , 20[ ]
[FORM OF]
U.S. TAX CERTIFICATE
(For Non-U.S. Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is hereby made to the Credit Agreement dated as of December [_], 2022, among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Pursuant to the provisions of Section 3.4 of the Credit Agreement, the undersigned hereby certifies that
(i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a credit agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Company within the meaning of Section 881(c)(3)(B) of the Code and
(v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Company as described in Section 881(c)(3)(C) of the Code.
The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or W-8BEN-E, as applicable, or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or W-8BEN-E, as applicable, from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.
Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.
[NAME OF PARTICIPANT]
By: Name:
Title:
Date: , 20[ ]
EXHIBIT E SOLVENCY CERTIFICATE
Date: , 20
To the Administrative Agent, the Collateral Agent and each of the Lenders party to the Credit Agreement referred to below:
I, the undersigned, the [Chief Financial Officer][Treasurer] of Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), in that capacity only and not in my individual capacity (and without personal liability), do hereby certify as of the date hereof, and based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof), that:
1.This Solvency Certificate (this “Certificate”) is being executed and delivered pursuant to Section 4.1(o) of the Credit Agreement, dated as of December [_], 2022, among the Company, the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this certificate shall have the meanings set forth in the Credit Agreement.
2.For purposes of this certificate, the terms below shall have the following
definitions:
(a)“Fair Value”
The amount at which the assets (both tangible and intangible), in their entirety, of the Company and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act.
(b)“Present Fair Salable Value”
The amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Company and its Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated.
(c)“Stated Liabilities”
The recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Company and its Subsidiaries taken as a whole, as of the date hereof after giving effect to the consummation of the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof), determined in accordance with GAAP consistently applied.
(d)“Identified Contingent Liabilities”
The maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof) (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Company.
(e)“Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they
mature”
The Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
(f)“Do Not Have Unreasonably Small Capital”
The Company and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
3.For purposes of this Certificate, I, or officers of the Company under my direction and supervision, have performed the following procedures as of and for the periods set forth below.
(g)I have knowledge of and have reviewed to my satisfaction the Credit Agreement.
(h)As [Chief Financial Officer][Treasurer] of the Company, I am familiar with the financial condition of the Company and its Subsidiaries.
4.Based on and subject to the foregoing, I hereby certify on behalf of the Company that after giving effect to the consummation of the Transactions (including the execution and delivery of the Credit Agreement, the making of the Term Loans and the use of proceeds of such Term Loans on the date hereof), it is my opinion that (i) each of the Fair Value and the Present Fair Salable Value of the assets of the Company and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Company and its Subsidiaries taken as a whole Do Not Have Unreasonably Small Capital; and (iii) the Company and its Subsidiaries taken as a whole Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature.
IN WITNESS WHEREOF, the Company has caused this certificate to be executed on its behalf by its [Chief Financial Officer][Treasurer] as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title: [Chief Financial Officer][Treasurer]
EXHIBIT F COMPLIANCE CERTIFICATE
To: The Administrative Agent, the Collateral Agent and Lenders party to the Credit Agreement Described Below
This Compliance Certificate (this “Certificate”) is furnished pursuant to that certain Credit Agreement dated as of December [_], 2022 among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the lenders from time to time party thereto (the “Lenders”), JPMorgan Chase Bank, N.A., as Administrative Agent, and GLAS Americas LLC, as Collateral Agent (as it may be amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”). Unless otherwise defined herein, capitalized terms used in this Certificate have the meanings ascribed thereto in the Credit Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1.I am the duly elected , 1of the Company;
2.I have reviewed the terms of the Credit Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Company and its Subsidiaries during the accounting period covered by the attached financial statements; and
3.The examinations described in paragraph 2 did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes a Default or Unmatured Default during or at the end of the accounting period covered by the attached financial statements (the “Covered Period”) or as of the date of this Certificate, except as set forth below.
Described below are the exceptions, if any, to paragraph 3 by listing, in detail, the nature of the condition or event, the period during which it has existed and the action which the Company has taken, is taking, or proposes to take with respect to each such condition or event:
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
_________________________________________________________________
The foregoing certifications and the financial statements delivered with this Certificate in support hereof, are made and delivered this day of , .
1 Must be a Designated Financial Officer.
Annex I
AGREED SECURITY PRINCIPLES
1.Agreed Security Principles
(i)Subject to paragraph (b) below, the guarantees and security required to be provided under the Loan Documents (i) by any Loan Party incorporated in a Foreign Guarantor Jurisdiction (such term as defined below) (a “Foreign Loan Party”) or (ii) over the Equity Interests of a Foreign Loan Party owned by any Loan Party, will in each case, be given in accordance with the security principles set out in this Annex I (these “Agreed Security Principles”). This Annex I identifies the Agreed Security Principles and determines the extent and terms of the guarantees and security proposed to be provided (x) by the Foreign Loan Parties and (y) in respect of the Equity Interests of Foreign Loan Parties owned by any Loan Party in relation to the Loans (or any refinancing thereof) and the other Obligations.
(j)To the extent that an interpretation of these Agreed Security Principles or a determination is required to be made hereunder in connection with the delivery of guarantees and security or the terms of the guarantees and security, such determination will be made by the Company and the Required Lenders and, with respect to any provisions relating to protections or obligations of the Administrative Agent or the Collateral Agent, the Administrative Agent and the Collateral Agent, respectively. For the avoidance of doubt, neither the Collateral Agent nor the Administrative Agent shall have any obligation to ensure that the security and guarantees provided are consistent with these Agreed Security Principles.
2.Guarantees
Subject to the guarantee limitations set out in the Loan Documents, and with respect to the Foreign Loan Parties, customary limitations in the relevant jurisdiction reasonably agreed by the Company and the Required Lenders, each guarantee by a Foreign Loan Party will be an upstream, cross-stream and downstream guarantee for the Obligations in accordance with, and subject to, the terms of these Agreed Security Principles in each relevant jurisdiction (references to "security" to be read for this purpose as including guarantees).
3.Secured Liabilities
Security documents will secure, subject to local law restrictions, all liabilities of Loan Parties under the Loan Documents in accordance with, and subject to, the terms of the Agreed Security Principles in each relevant jurisdiction.
4.Overriding Principle
(k)The guarantees and security to be provided in respect of the Agreement by Foreign Subsidiaries in accordance with these Agreed Security Principles are only to be given by Foreign Subsidiaries which are incorporated in Germany, Belgium, France, England & Wales, Sweden, Spain, Poland, Italy and the Netherlands (each a “Foreign Guarantor Jurisdiction”) and no security or guarantees shall be required to be given by Foreign Subsidiaries not incorporated in Foreign Guarantor Jurisdictions.
(l)The parties agree that the overriding intention, subject to paragraph (a) above, is for security only to be granted by, and shall be limited, to a Foreign Loan Party which is incorporated in a Foreign Guarantor Jurisdiction in respect only over (and in any case only to the extent commercially and legally feasible in such Foreign Guarantor Jurisdiction):
(A)its Required Accounts (without control over use prior to a Default);
(B)its tangible moveable property;
(C)intra-group receivables owed to such Foreign Loan Party;
(D)intellectual property owned by such Foreign Loan Party;
(E)insurance policies;
(F)account and trade receivables owed to such Foreign Loan Party;
(G)the shares and/or quotas owned in such Foreign Loan Party by its direct holding company provided that such direct holding company is also a Loan Party and shares owned by such Foreign Loan Party in its direct subsidiaries;
(H)fee owned real property having a fair market value in excess of
$10,000,000;
(I)in the case of an English Loan Party, its goodwill and uncalled capital;
(J)all of its assets by way of a qualifying floating charge (or equivalent) from an English Loan Party and any other Foreign Loan Party incorporated in a Foreign Guarantor Jurisdiction with a practical equivalent of an English law floating charge;
(K)tort claims, investments and contractual claims against third parties; and
(L)in the case of a security provider incorporated in Sweden, corporate mortgage (Sw. företagshypotek) over corporate mortgage registrations (Sw. företagsinteckingar),
(the “Overriding Principle”) and that no other security shall be required to be given by any other Foreign Loan Party or any other person or in relation to any other asset.
(m)Without prejudice to paragraph (b) above, no guarantees shall be required to be granted by and no security shall be required to be granted by or in (i) any Subsidiary that is an Excluded Subsidiary or (ii) any asset that is an Excluded Asset.
(n)In addition, for the avoidance of doubt, no Foreign Loan Party incorporated in France shall be under any obligation pursuant to these Agreed Security Principles to grant security interest on any asset if it is reasonably determined by such Foreign Loan Party incorporated in France that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed delivered), where such opinion has not been delivered (or is not deemed delivered). If it is reasonably determined by the Company and the Required Lenders that the applicable time and cost of obtaining such opinion would be disproportionate to the
benefit accruing to the Lenders of obtaining such security interest, the Foreign Loan Party incorporated in France shall not launch the works council’s consultation process and shall not be under any obligation to grant the security interest on such relevant asset.
5.Governing Law and Jurisdiction of Security
(o)Except as described below, all security will be governed by the law of the jurisdiction of incorporation of the applicable grantor of the security.
(p)Share security over any subsidiary will be governed by the law of the place of incorporation of that subsidiary or of the applicable grantor, provided that such place of incorporation is a Foreign Guarantor Jurisdiction, the United States or Canada.
(q)Any security in respect of inventory and if reasonably required by the Collateral Agent (at the direction of the Required Lenders), other Required Accounts shall be governed by the law of the jurisdiction in which it is located, provided that the location is a Foreign Guarantor Jurisdiction, the United States or Canada.
(r)Security in relation to any receivables will be governed by the laws of the governing law of such receivables or the place of incorporation of the applicable grantor, provided that such law is the law at a Foreign Guarantor Jurisdiction.
(s)No action in relation to security (including any perfection step, further assurance step, filing or registration) will be required in jurisdictions where the applicable grantor of the security is not incorporated other than in the United States, Canada or another Foreign Guarantor Jurisdiction.
6.Terms of security documents
The following principles will be reflected in the terms of any security taken in connection with the Loans (or any refinancing thereof):
(t)security will be ranking in accordance with the lien priorities in any applicable Intercreditor Agreement;
(u)security will, to the extent possible under local law, not be enforceable until the occurrence of a Default (an “Applicable Event”) which is continuing (and, with respect to security governed by the laws of the Netherlands, constitutes a default in the performance of the secured obligations);
(v)with respect to security interests granted by an Italian Loan Party (or governed by Italian law) and a Spanish Loan Party, Applicable Event will be a payment default or the acceleration of the relevant secured obligations;
(w)unless as otherwise required to perfect the security or required by law (e.g. with respect to the power of attorney for the purposes of the notarization of the equity pledge security of any German Loan Party or the Spanish law irrevocable power of attorney to be granted in relation to the Spanish law Security), the beneficiaries of the security or any agent will only be able to exercise a power of attorney granted by a Loan Party and to exercise any withdrawal rights in respect of a secured asset following (1) the occurrence of an Applicable Event which is continuing or (2) if the relevant Loan Party has failed to comply with its obligations under the relevant security documents within five Business Days of request;
(x)the security documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Loan Documents; accordingly:
(i)they should not contain identical or additional representations, undertakings or indemnities (including in respect of insurance, information, maintenance or protection of assets or the payment of fees, costs and expenses) unless required for the creation or perfection of security, to maintain effective security or customary in the relevant jurisdiction;
(ii)notwithstanding anything to the contrary in any security document, the terms of a security document shall not operate or be construed so as to prohibit or restrict any transaction, matter or other step permitted by the Loan Documents or where the applicable level of creditor consent required by the relevant Loan Document (“Required Creditor Consent”) has been obtained and the Collateral Agent shall (pursuant to its authority under Section 11.9 of the Agreement), upon the reasonable request of a Foreign Loan Party that grants Collateral (a “Chargor”) promptly following receipt of an officer’s certificate to the extent requested by the Collateral Agent, enter into such documentation and/or take such other action as is required by a Chargor (acting reasonably) in order to facilitate any such transaction, matter or other step, including by way of executing any confirmation, consent to dealing, release or other similar or equivalent document, provided that any costs and expenses incurred by the Collateral Agent entering into such documentation and/or taking such other action at the request of such Chargor pursuant to this paragraph shall be for the account of such Chargor, in accordance with the costs and expenses provisions set out in the Agreement and such provision shall be included in each security document; and
(iii)the security documents should not operate so as to require additional consents or authorisations from the Lenders unless these are required for the creation or perfection of security or to maintain effective security;
(y)security will, where possible, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges or notices to be delivered in respect of future acquired assets in order for effective security to be created over that class of asset, such supplemental pledges or notices will (unless otherwise customary in the relevant jurisdiction) be provided periodically at intervals no more frequent than quarterly (unless required more frequently under local law or local market practice, including if required due to the shorter maturity of the relevant future acquired asset) (or with such higher frequency specified by the Collateral Agent after the occurrence of an Applicable Event);
(z)the security documents will provide that, upon the occurrence of the date on which all Obligations (or Secured Obligations (as defined in the ABL Intercreditor Agreement, in the case of any Common Lien, as defined in the ABL Intercreditor Agreement)) (each case other than in respect of contingent indemnification and expense reimbursement claims not then due) have been paid in full, the Collateral Agent shall, at the request of and the cost and expense of the Company, and solely with respect to the Obligations (or Secured Obligations), release, reassign or retransfer the respective asset or class of assets to the relevant Loan Party, and shall take all actions and execute any and all documents as may be necessary or convenient to evidence the cancellation, release and termination of all guarantees and security pursuant to Section 11.9 of the Agreement without having to make or being deemed to make any representation or warranty, whether express or implied, with respect to the relevant payor’s financial soundness and/or any asset or class of assets so released and subject to the rights of any
person having prior rights over any such assets; any such release, reassignment, retransfer, cancellation or termination is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in bankruptcy, insolvency, liquidation, administration or otherwise, without limitation, then such security or guarantee will continue or be reinstated as if the release, reassignment, retransfer, cancellation or termination had not occurred;
(aa)unless required by local law or customary in the relevant jurisdiction, the circumstances in which the Collateral shall be released should not be dealt with in individual security documents but, if so required, shall, except to the extent required by local law, be the same as those set out in the Loan Documents;
(ab)other than in each case of any German law share pledge agreement, each security document must contain a clause which records that if there is a conflict between the security document, the Agreement or any applicable Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Agreement and the applicable Intercreditor Agreement will take priority over the provisions of the security document unless and to the extent it would prejudice the legality, creation, priority, perfection, validity or enforceability of such security document or the security created under or pursuant to the security document, save with respect to the release of the security interests where applicable law and market practice require certain additional steps in order to address local law claw back issues (e.g. comfort documents);
(ac)each of the security documents will, to the extent possible under local law, include a provision that provides that (i) all rights, protections, limitations on liability, exculpations and indemnifications provided or otherwise afforded to the Administrative Agent and the Collateral Agent under the Agreement, including, without limitation Article XI and Section 10.6 of the Agreement shall apply in all respects to the Collateral Agent as chargee, security trustee or pledgee under the applicable security document, (ii) the applicable security document shall be subject to the provisions of Section 10.6 of the Agreement, which provisions shall apply to the applicable security document mutatis mutandis as though fully set forth therein, with each reference to the Borrower or Company, as applicable, being read to include the applicable chargor or pledgor, (iii) the Collateral Agent may act and exercise rights under the applicable security document, but shall not be obligated to act or exercise rights under the applicable security documents (and shall not incur liability for failure to act or exercise rights) unless directed in writing by the Required Lenders; provided that the Collateral Agent shall not be required to take any action or exercise any right that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose the Collateral Agent to liability (financial or otherwise) or that is contrary to any Loan Document or applicable laws (for the avoidance of doubt, the Collateral Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Loan Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions);
(ad)subject to (or to the extent permitted by) the applicable law and in accordance with market practice, the terms of the security documents shall secure the Obligations as such Obligations (and/or the Agreement or other Loan Documents) (or, where relevant, parallel debt derived therefrom) may be amended, amended and restated, restated, supplemented, replaced, renewed, restructured, extended, refunded, refinanced or otherwise modified from time to time (including without limitation, where such transactions result in any increases or decreases of the principal amount of the Obligations, any extensions of maturity, any changes in interest rates or other economic
terms, or any changes in the Secured Parties, Lenders or Lenders’ agents) so as to minimize the need for any additional security documents, confirmations, reaffirmations, supplements, amendments or other actions with respect to such security documents in connection with the foregoing; and
(ae)each of the security documents will provide that all proceeds will be applied in accordance with the Intercreditor Agreements and Section 2.10 of the Agreement.
7.Shares and/or quotas
(af)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, the legal title of the shares and/or quotas subject to any security will remain with the relevant grantor of the security (unless transfer of title on granting such security is customary in the applicable jurisdiction and does not result in any risk of liability to the Collateral Agent (as advised by the advisors to the Collateral Agent or Lenders)).
(ag)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, any grantor of share security will be permitted to retain and to exercise all voting rights and powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition, provided that (to the extent permitted by the applicable law) such grantor must not exercise any such voting rights and powers in any manner which:
(i)has the effect of changing the rights of such shares or of any related rights with respect to such shares, unless specifically permitted by the Agreement; or
(ii)adversely affects the validity or enforceability of such share security or causes a Default to occur, or is otherwise materially prejudicial to the interests of the Collateral Agent and/or the Secured Parties.
(ah)Where customary and applicable as a matter of law and following a request by the Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders), as soon as reasonably practicable (taking into account any stamping, endorsement in blank, assignment in blank or other transfer requirements) following the granting of any share security over certificated shares or quotas, the applicable share certificate (or other documents evidencing title to the relevant shares, including any shareholder's register, as applicable) and a stock transfer form executed in blank (or applicable law equivalent) will be provided to the Collateral Agent.
(ai)No security shall be required to be granted over any shares or ownership interests in any person that are not directly owned by its immediate holding company.
(aj)If required under local law, security over shares and/or quotas will be notarised and registered subject to the general principles set out in these Agreed Security Principles. In particular, but not limited to, to the extent applicable, security over shares and/or quotas issued by a Spanish company will be registered in the relevant registry book of shareholders (libro registro de acciones nominativas) and/or the relevant registry book of quotaholders (libro registro de socios) or with the relevant depositary entity and on the titles to property over the shares/quotas; with respect to shares in Polish companies, the information on establishment of share security will be entered into the book of shares (księga udziałów) and into the list of shareholders (lista wspólników), which will be filled together with motions for registrations of registered pledges over shares in each Polish company within the relevant registry courts.
(ak)Unless the restriction is required by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer, approval requirements or the registration of the transfer of the shares on enforcement of the security granted over them or to allow exercising voting rights by the Collateral Agent or to allow the Collateral Agent to convene a general meeting. To the extent applicable, the applicable grantor of the security will use its commercially reasonable efforts to obtain the registration of any needed amendment of the by-laws with the relevant mercantile registry as soon as practicable.
8.Bank accounts
(al)Until an Applicable Event has occurred and is continuing, unless the Agreement expressly provides for any specific account (by reference to its purpose) to be subject to specific restrictions on use, any Loan Party will be free to deal, operate and transact business in relation to any bank accounts over which it grants security (including opening and closing accounts) until the occurrence of an Applicable Event which is continuing.
(am)If required by local law to create or perfect the security, notice of the security will be served on the account bank in relation to applicable accounts within five (5) Business Days of the creation or intended creation of the security over such account. and the applicable grantor of the security will use its commercially reasonable efforts to obtain a signed acknowledgement of that notice. Irrespective of whether notice of the security is required for perfection, if the service of notice would prevent any member of the Group from using a bank account in the course of its business, no notice of security will be served until the occurrence of an Applicable Event that is continuing.
(an)Any security over bank accounts will be subject to any security interests in favour of the account bank, which are created either by law or in the standard terms and conditions of the account bank. No grantor of security will be required to change its banking arrangements or standard terms and conditions in connection with the granting of bank account security, but will, in relation to accounts in Germany, the Netherlands and Belgium, be required to request the account bank to waive such liens pursuant to its general terms and conditions.
(ao)[Reserved].
(ap)If any bank account is required to be opened as a matter of local law in order to perfect any share security required to be granted in accordance with these Agreed Security Principles, (i) such bank account shall not be required to be opened prior to the date falling 90 days after such share security is granted and (ii) the Lenders authorise the Collateral Agent to enter into any documentation requested by the applicable account bank in connection with such security.
(aq)If required under applicable local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
9.Moveable Property
(ar)A Foreign Loan Party shall grant security over its moveable property, subject to the general principles in these Agreed Security Principles.
(as)No security over inventory needs to be granted by a Foreign Loan Party if no security needs to be granted under the ABL Facility.
(at)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Loan Documents, the Foreign Loan Party providing the security is permitted to dispose of and use its moveable assets in accordance with the terms of the Agreement.
(au)If the granting of effective security over moveable assets gives rise to registration costs or similar taxes or costs, the secured amount under such security will be proportionate to the value of the underlying moveable asset (together with such buffer as may be reasonably agreed by the Administrative Agent (at the direction of the Required Lenders) with the Company to reflect the fluctuating nature of the asset class), and ‘mandates’ to grant security will be granted where customary.
10.Insurance Policies
(av)Each Foreign Loan Party shall grant security over its insurance policies, subject to the general principles in these Agreed Security Principles and other than insurance proceeds which (i) are payable to third parties, such as proceeds under life, health, group insurance or similar third parties liability insurance policies or (ii) benefit to employees and/or directors, if any.
(aw)No security will be granted over any insurance policy which does not allow security to be granted or which excludes the assignability of the insurance receivables, other than where such grant of security or such assignment is subject only to the consent of the relevant insurer. The provisions of this paragraph shall not operate to jeopardise any floating charge nor any assignment or other security interest over any and all damages, compensation, proceeds or other income attributable to such insurance policies which such Foreign Loan Party may be entitled (or which such Foreign Loan Party may be awarded or otherwise derive therefrom).
(ax)If required by local law to perfect the security or customary in the relevant jurisdiction, notice of the security will be served on the insurer within five Business Days (or less if required or customary under local law) of the security being granted and such Foreign Loan Party shall use its commercially reasonable efforts to obtain a signed acknowledgement of that notice.
11.Intellectual property
(ay)A Foreign Loan Party shall grant security over its intellectual property, subject to the general principles in these Agreed Security Principles.
(az)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Loan Documents, such Foreign Loan Party shall be free to deal with, use, licence and otherwise commercialise those assets in the course of its business (including allowing its intellectual property to lapse if no longer material to its business) to the extent permitted under the Agreement.
(ba)No security will be granted over intellectual property which cannot be secured under the terms of any relevant licensing agreement.
(bb)If required under local law to create or perfect the relevant security, security over intellectual property shall be notarized and/or registered under the law of the jurisdiction of incorporation or formation of the applicable grantor, and no filings, registrations or other steps shall be required to be taken pursuant to the law of any other jurisdiction other than the United States or the United Kingdom, subject to the general principles set out in these Agreed Security Principles.
(bc)Security over intellectual property rights will be taken on an “as is, where is” basis and such Foreign Loan Party will not be required to procure any changes to, or corrections of filings on any registers (unless, subject to this Annex, such changes to, or corrections of, filings are required to validly create such Security).
12.Receivables
(bd)A Foreign Loan Party shall grant security over its receivables, subject to the general principles in these Agreed Security Principles.
(be)In respect of security over receivables (other than intra-group receivables), notice of the security shall be served on the relevant debtor (other than an intercompany debtor) immediately after a Default, which is continuing. Notice of security over intercompany receivables shall be served on the relevant intercompany debtor within five (5) Business Days of the creation of the security over such receivables.
(bf)Each Foreign Loan Party will use commercially reasonable efforts to amend, after the Closing Date, the respective receivable invoices to mention the Collateral Agent’s security interest in such receivables to the extent required under the laws of the local jurisdiction of the Foreign Loan Party to perfect the security interest.
(bg)The Collateral Agent will receive a floating charge with respect to receivables to the extent a floating charge can be created under local law.
(bh)If required under local law, security over intercompany receivables will be registered and notified to the relevant intra-group debtor subject to the general principles set out in this Annex.
(bi)If a Foreign Loan Party grants security over its receivables, it shall be free to deal with, amend, waive or terminate those receivables in the course of its business and in accordance with the terms of the Agreement until the occurrence of an Applicable Event (other than any amendments or waivers that would materially adversely prejudice the rights of the Secured Parties).
(bj)No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract or if the terms of the relevant contract exclude the assignability of the trade receivables (unless such restrictions are set aside by overriding principles of applicable law). The provisions of this paragraph shall not operate to jeopardise any floating charge, any other security interest in respect of such receivables which is not restricted, any trust arrangement in respect of such receivables or any assignment or other security interest over any and all damages, compensation, proceeds, remuneration, profit, rent or other income attributable to such trade receivables which the Foreign Loan Party may be entitled (or which such Foreign Loan Party may be awarded or otherwise derive therefrom).
(bk)If required under local law security over trade receivables will be registered subject to the general principles set out in this Annex.
(bl)Any list of receivables required to be delivered under any security document will not include details of the underlying contracts (but may include non-sensitive generic information to the extent that would allow for the creation of security) unless required under local law or required to enforce the security.
(a)With respect to a French Loan Party, such French Loan Party will grant security over its commercial receivables by way of assignment of any existing or future receivable
(créance existante ou future) due or to be due by any existing or future debtor to such French Loan Party, in each case as originated by such French Loan Party, pursuant to articles L. 313-23 et seq. of the French Monetary and Financial Code (Code monétaire et financier).
13.Additional Principles
These Agreed Security Principles embody the recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or commercially reasonable guarantees and/or security from Foreign Loan Parties in each jurisdiction in which it has been agreed that guarantees and security will be granted by those Foreign Loan Parties. In particular:
(bm)general legal and statutory limitations, regulatory restrictions (including foreign exchange controls), financial assistance, anti-trust and other competition authority restrictions, corporate object, corporate benefit, fraudulent preference, legal and equitable subordination, "transfer pricing", "thin capitalisation", "earnings stripping", "exchange control restrictions", "capital maintenance" rules and "liquidity impairment" rules, tax restrictions, retention of title claims, employee consultation or approval requirements and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited accordingly, provided that, to the extent requested by the Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders) before signing any applicable security or accession document, the relevant member of the group consisting of the Company and its Subsidiaries (the “Group”) shall use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bn)a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or registration) is the applicable time and cost (including adverse effects on taxes, interest deductibility, stamp duty, registration taxes, notarial costs, guarantee fees payable to any person that is not a member of the Group and all applicable legal fees) which will not be disproportionate to the benefit accruing to the Lenders of obtaining such guarantee or security, as determined by the Company and the Required Lenders);
(bo)unless otherwise required by the Agreement, members of the Group will not be required to give guarantees or enter into security documents if they are not directly or indirectly wholly owned by the Company or if it is not within the legal capacity of the relevant members of the Group or if it would conflict with the fiduciary or statutory duties of their directors or contravene any applicable legal, regulatory or contractual prohibition or restriction or have the potential to result in a material risk of personal or criminal liability for any director or officer of or for any member of the Group, provided that, to the extent requested by the Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders) before signing any applicable security document or accession document, the relevant member of the Group shall, in relation to a contractual prohibition or restriction only, use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bp)having regard to the principle in paragraph (b) above, the Company and the Required Lenders shall discuss in good faith (having regard to customary practice in applicable jurisdictions) with a view to determining whether certain security can be provided by
the relevant Foreign Loan Party granting a promise to pledge in favour of the Lenders coupled with an irrevocable power of attorney to the Collateral Agent as opposed to a definitive legal mortgage or pledge over the relevant asset;
(bq)guarantees and security will be limited so that the aggregate of notarial costs and all registration and like taxes and duties relating to the provision of security will not exceed an amount to be agreed between the Company and the Required Lenders;
(br)where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security to the Lenders, as determined by the Company and the Required Lenders security will be granted over the material assets only;
(bs)it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets, as determined by the Company and the Required Lenders, in which event security will not be taken over such assets;
(bt)in each case to the extent the applicable restriction, condition or third party right did not arise in contemplation of the relevant guarantee or grant of security, any asset subject to a legal requirement, contract, lease, licence, instrument, regulatory constraint (including any agreement with any government or regulatory body) or other third party arrangement, which may prevent or condition the asset from being charged, secured or being subject to the applicable security document (including requiring a consent of any third party, supervisory board or works council (or equivalent)) and any asset which, if subject to the applicable security document, would give a third party the right to terminate or otherwise amend any rights, benefits and/or obligations with respect to any member of the Group in respect of the asset or require the relevant chargor to take any action materially adverse to the interests of the Group or any member thereof, in each case will be excluded from a guarantee or security document, provided that commercially reasonable efforts to obtain consent to securing any asset (where otherwise prohibited) shall be used by the Group if the Administrative Agent (acting at the direction of Required Lenders) specifies prior to the date of the security or accession document that the asset is material and the Company is satisfied that such endeavours will not involve placing relationships with third parties in jeopardy;
(bu)the giving of a guarantee, the granting of security and the registration and/or the perfection of the security granted will not be required if it would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Loan Documents (including dealing with the secured assets and all contractual counterparties or amending, waiving or terminating (or allowing to lapse) any rights, benefits or obligations, in each case prior to an Applicable Event which is continuing), and any requirement under these Agreed Security Principles to seek consent of any person or take or not take any other action shall be subject to this paragraph (i);
(bv)any security document will only be required to be notarised if required by law in order for the relevant security to become effective (including against third parties), enforceable or admissible in evidence (including without limitation evidence before third parties);
(bw)to the extent possible and unless required by applicable law in order for any assignee or transferee to benefit from the guarantees or security, there should be no action required to be taken in relation to the guarantees or security when any secured party assigns or transfers any of its participation to a new secured party (and, unless explicitly agreed to the contrary in the Loan Documents, no Foreign Loan Party shall bear or
otherwise be liable for any taxes, any notarial, registration or perfection fees or any other costs, fees or expenses that result from any assignment or transfer by a Lender except if an Applicable Event has occurred and is continuing);
(bx)no title investigations or other diligence on assets will be required and no title insurance will be required;
(by)security will not be required over any cash constituting regulatory capital or customer cash (and such assets or cash shall be excluded from any relevant security document);
(bz)to the extent legally effective, all security will be given in favour of the Collateral Agent and not the Secured Parties individually (with the Collateral Agent to hold one set of security documents for all the Secured Parties unless otherwise required by local law); "parallel debt" provisions will be used where necessary and recognised; for the avoidance of doubt, in relation to accessory security under German law (akzessorische Sicherheiten), such security will be given in favour of the Collateral Agent and the Secured Parties; it is acknowledged that certain security will be granted for those Secured Parties that satisfy any local law requirements necessary to benefit from such security;
(ca)each security document shall be deemed not to restrict or condition any transaction permitted under the Loan Documents and the security granted under each security document entered into after the Closing Date shall be deemed to be subject to these Agreed Security Principles, before and after the execution of the relevant security document and creation of the relevant security;
(cb)each security document must be provided on terms which are not inconsistent with the turnover or sharing provisions in the Domestic Guarantee Agreement, the Foreign Guarantee Agreement and/or Agreement;
(cc)no guarantee or security shall guarantee or secure any "Excluded Swap Obligations" defined in accordance with the LSTA Market Advisory Update dated February 15, 2013 entitled "Swap Regulations' Implications for Loan Documentation", and any update thereto by the LSTA;
(cd)no translation of any document relating to any security or any asset subject to any security will be required to be prepared or provided to the Secured Parties, unless (i) any document which is to be signed by the Collateral Agent (acting at the direction of the Required Lenders) or any notice to be delivered to the Collateral Agent or (ii) required for such documents to become effective or admissible in evidence or (iii) an Applicable Event is continuing; and
(ce)local security documents may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and delivery of an executed counterpart to any security document by facsimile transmission or other electronic transmission (such as .pdf) shall be effective as delivery of a manually signed counterpart, in each case to the extent such execution is effective under local law.
14.Amendment
In any event of any material conflict or material inconsistency between any term of these Agreed Security Principles and any term of a Security Document or a guarantee, the Secured Parties authorize, instruct and direct the Collateral Agent to, and the Collateral Agent (or the Secured Parties, if required under the relevant jurisdiction) shall promptly (at the option and upon request of the Company prior to
the occurrence of a Default which is continuing) (i) enter into (and notarise if required under the relevant jurisdiction) such amendments to such Security Document or guarantee or (ii) release and terminate such Collateral and enter into a replacement Security Document or guarantee on such amended terms, in each case as shall be necessary or desirable to cure such conflict or inconsistency, provided that (1) any such action (including any actions to be taken by the Lenders) will be at the sole cost of the Company; (2) the relevant Loan Party shall deliver all corporate authorities and legal opinions as may be required by the Collateral Agent; and (3) no such action will be required to be taken in the event such amendment or replacement Security Document or guarantee would result in any hardening period or clawback period to be reset.
15.Execution of applicable Intercreditor Agreements
Any Foreign Loan Party, existing on the Closing Date or hereinafter incorporated, shall sign or acknowledge, as applicable, any Intercreditor Agreement.
Exhibit 10.6
ASSET-BASED REVOLVING CREDIT AND GUARANTY AGREEMENT
dated as of December 29, 2022 among
DIEBOLD NIXDORF, INCORPORATED,
THE EUROPEAN BORROWERS AND CANADIAN BORROWER NAMED HEREIN,
THE SUBSIDIARIES OF DIEBOLD NIXDORF, INCORPORATED NAMED HEREIN as GUARANTORS,
EACH ADDITIONAL BORROWER AND GUARANTOR THAT BECOMES A PARTY HERETO AFTER THE DATE HEREOF,
VARIOUS LENDERS,
JPMORGAN CHASE BANK, N.A. and PNC CAPITAL MARKETS LLC,
as Joint Lead Arrangers and Joint Bookrunners,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent,
GLAS AMERICAS LLC,
as European Collateral Agent,
JPMORGAN CHASE BANK, N.A. and PNC BANK, NATIONAL ASSOCIATION,
as Co-Syndication Agents and
BANK OF AMERICA, N.A. and DEUTSCHE BANK
as Co-Documentation Agents
$250,000,000 Asset-Based Revolving Credit Facility
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS AND INTERPRETATION 2
1.1Definitions 2
1.2Accounting Terms 99
1.3Interpretation, Etc 100
1.4French terms 101
1.5Swedish terms 104
1.6Polish terms 105
1.7German terms 106
1.8Belgian Terms 106
1.9Certain Spanish Matters 107
1.10Certain Canadian Matters 108
1.11Certain Swiss Matters 108
1.12Exchange Rates; Currency Equivalents 109
1.13Excluded Swap Obligations 109
1.14Interest Rates; Benchmark Notifications 109
1.15Divisions 110
SECTION 2. LOANS AND LETTERS OF CREDIT 110
2.1Revolving Loans 110
2.2Swing Line Loans 114
2.3Issuance of Letters of Credit and Purchase of Participations Therein 115
2.4Pro Rata Shares 121
2.5Resignation of Issuing Bank 121
2.6Evidence of Debt; Register; Lenders’ Books and Records; Notes 121
2.7Interest on Loans 122
2.8Conversion/Continuation of Loans 128
2.9Default Interest 128
2.10Fees 129
2.11Voluntary Prepayments 130
2.12Voluntary Revolving Commitment Reductions 130
2.13Mandatory Prepayments 130
2.14Application of Prepayments 132
2.15General Provisions Regarding Payments 132
2.16Ratable Sharing 135
2.17Making or Maintaining Loans 135
2.18Increased Costs; Capital Adequacy 138
2.19Taxes; Withholding, Etc 139
2.20Obligation to Mitigate 148
2.21Defaulting Lenders 149
2.22Removal or Replacement of a Lender 151
2.23Extensions 152
2.24Protective Advances 152
2.25Alternate Rate of Interest 153
Page
SECTION 3. CONDITIONS PRECEDENT 157
3.1Closing Date 157
3.2Conditions Precedent to Each Credit Extension After the Closing Date 162
SECTION 4. REPRESENTATIONS AND WARRANTIES 163
4.1Corporate Existence and Standing 163
4.2Authorization and Validity 163
4.3No Conflict; Government Consent 163
4.4Financial Statements 163
4.5Material Adverse Effect 164
4.6Taxes 164
4.7Litigation and Guarantee Obligations 164
4.8Subsidiaries 164
4.9Pension Matters 164
4.10Accuracy of Information 165
4.11Regulations T, U and X 165
4.12Use of Proceeds 166
4.13Compliance With Laws; Properties 166
4.14Plan Assets; Prohibited Transactions 166
4.15Environmental Matters 166
4.16Investment Company Act 166
4.17Subsidiary Borrowers 166
4.18Insurance 166
4.19Ownership of Properties 166
4.20Labor Controversies 167
4.21Burdensome Obligations 167
4.22Patriot Act 167
4.23Anti-Corruption Laws and Sanctions 167
4.24Intellectual Property; Licenses, Etc 167
4.25Solvency 168
4.26Affected Financial Institutions 169
4.27Perfection, Etc 169
4.28Centre of Main Interests and Establishments 170
4.29Compliance with Swiss Non-Bank Rules 170
4.30COVID Loans 171
4.31Segregation of assets under the Italian Civil Code 171
4.32Direzione e coordinamento 171
SECTION 5. AFFIRMATIVE COVENANTS 171
5.1Financial Statements and Other Reports 171
5.2Use of Proceeds 173
5.3Notice of Default; Notice of Material Adverse Effect 173
5.4Conduct of Business 173
5.5Taxes 174
5.6Insurance 174
5.7Compliance with Laws 174
5.8Properties; Inspection 174
5.9Collateral Matters; Further Assurances, Etc 174
Page
5.10Maintenance of Ratings 177
5.11Guaranties 177
5.12Borrowing Base Determination 178
5.13Field Examinations; Collateral Appraisals 179
5.14Additional Borrowers 179
5.15Control Accounts; Approved Deposit Accounts 180
5.16Landlord Waivers and Bailee’s Letters 183
5.17Financial Assistance 183
5.18Compliance with Swiss Non-Bank Rules 183
5.19Post-Closing Matters 183
5.20[Reserved] 184
5.21DAC 6 184
5.22Pensions 184
5.23Centre of Main Interests and Establishments 184
5.24European Ongoing Perfection Requirements 185
5.25People with Significant Control Regime 185
5.26Dutch Tax Covenants 185
SECTION 6. NEGATIVE COVENANTS 186
6.1Fixed Charge Coverage Ratio 186
6.2Merger; Consolidations; Fundamental Changes 186
6.3Sale of Assets 187
6.4Investments and Acquisitions 189
6.5Liens 190
6.6Affiliates 193
6.7Indebtedness 193
6.8Negative Pledge Clauses 197
6.9Limitation on Restrictions on Subsidiary Distributions 197
6.10Swap Contracts 198
6.11Receivables 198
6.12Restricted Payments 198
6.13Certain Payments of Restricted Indebtedness; Modifications of Restricted
Indebtedness Documents 200
6.14Amendments to Certain Documents 201
6.15[Reserved] 201
6.16Fiscal Year 201
6.17No Segregation of Assets or Finanziamenti Destinati 201
6.18Canadian Defined Benefit Plans 201
6.19Swiss Borrower 201
SECTION 7. GUARANTY 201
7.1Guaranty of the Obligations 201
7.2Limitation of Guaranty 202
7.3Contribution 202
7.4Liability of Guarantors Absolute 202
7.5Waivers by Guarantors 204
7.6Guarantors’ Rights of Subrogation, Contribution, Etc 205
7.7Subordination of Other Obligations 206
7.8Continuing Guaranty 206
Page
7.9Authority of Guarantors 206
7.10Financial Condition of the Borrowers 206
7.11Default, Remedies 207
7.12Bankruptcy, Etc 207
7.13Waiver of Judicial Bond 208
7.14Discharge of Guaranty Upon Sale of Guarantor 208
7.15Stay of Acceleration 208
7.16Assignment 208
7.17Limitation of Guaranty under Applicable Laws 208
7.18Certain Releases 215
7.19Spanish Guarantors Intent 215
SECTION 8. EVENTS OF DEFAULT 216
8.1Events of Default 216
8.2Actions in Respect of Letters of Credit 220
8.3[Reserved] 220
8.4[Reserved] 220
8.5CAM Exchange 220
SECTION 9. AGENTS 221
9.1Authorization and Action 221
9.2Agent’s Reliance, Limitation of Liability, Etc 225
9.3Posting of Communications 226
9.4Agent Individually 228
9.5Successor Agent 228
9.6Acknowledgements of Lenders and Issuing Bank 229
9.7Collateral Matters 231
9.8Credit Bidding 232
9.9Certain ERISA Matters 233
9.10Flood Laws 234
9.11Right to Indemnity 235
9.12[Reserved] 235
9.13French Collateral Documents 235
9.14Italian Law Credit Documents 235
9.15[Reserved] 236
9.16Belgian Priority of Ranking 236
9.17[Reserved] 236
9.18[Reserved] 236
SECTION 10. MISCELLANEOUS 236
10.1Notices 236
10.2Expenses 237
10.3Indemnity 238
10.4Setoff 240
10.5Amendments and Waivers 240
10.6Successors and Assigns; Participations 244
10.7Independence of Covenants 248
10.8Survival of Representations, Warranties and Agreements 249
Page
10.9No Waiver; Remedies Cumulative 249
10.10Marshalling; Payments Set Aside 249
10.11Severability 249
10.12Obligations Several; Independent Nature of Lenders’ Rights 249
10.13Headings 249
10.14GOVERNING LAW 250
10.15CONSENT TO JURISDICTION; SERVICE OF PROCESS 250
10.16WAIVER OF JURY TRIAL 250
10.17Confidentiality 251
10.18Entire Agreement 252
10.19Counterparts 252
10.20Patriot Act 252
10.21Electronic Execution 252
10.22Joint and Several Liability 253
10.23Agency of the Parent Borrower for Each Other Borrower and Guarantor 254
10.24Intercreditor Agreement 255
10.25Contribution and Indemnification Among the Borrowers 255
10.26Express Waivers by Borrowers in Respect of Cross Guaranties and Cross Collateralization 256
10.27Acknowledgement Regarding Any Supported QFCs 257
10.28Acknowledgement and Consent to Bail-In of Affected Financial Institutions 257
10.29Canadian Anti-Money Laundering Legislation. 258
10.30Spanish Formalities 258
10.31English Language 259
APPENDICES:
ARevolving Commitments
BNotice Addresses
CLetter of Credit Sublimit
SCHEDULES:
Schedule 2.3(k) Existing Letters of Credit Schedule 4.7 Litigation
Schedule 4.8 Subsidiaries
Schedule 4.9 Pension Matters
Schedule 4.24 Intellectual Property; Licenses, Etc. Schedule 4.27 Filing Offices
Schedule 5.19 Post-Closing Matters
Schedule 5.24 Ongoing European Perfection Requirements Schedule 6.4 Existing Investments
Schedule 6.5 Existing Liens
Schedule 6.7 Existing Indebtedness
EXHIBITS:
Exhibit A-1 Funding Notice
Exhibit A-2 Conversion/Continuation Notice Exhibit A-3 Issuance Notice
Exhibit A-4 Swing Line Request
Exhibit B-1 Revolving Loan Note
Exhibit B-2 Swing Line Note
Exhibit C Compliance Certificate
Exhibit D-1 United States Tax Compliance Certificate Exhibit D-2 Italian Lender Tax Certificate
Exhibit D-3 French Lender Tax Certificate
Exhibit E Assignment Agreement
Exhibit F Subordination Agreement
Exhibit G-1 Closing Date Certificate
Exhibit G-2 Solvency Certificate
Exhibit H [Reserved]
Exhibit I-1 Security Agreement
Exhibit J Landlord Personal Property Collateral Access Agreement Exhibit K Bailee’s Letter
Exhibit L Borrowing Base Certificate
Exhibit M Intercreditor Agreement
Exhibit N Joinder Agreement
Exhibit O Spanish Joinder Agreement
ANNEXES:
Annex I Agreed Security Principles
REVOLVING CREDIT AND GUARANTY AGREEMENT
This REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of December 29, 2022 is entered into by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”, the “US Borrower” or the “Company”), the certain Subsidiaries of Parent Borrower identified on the signature pages hereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”) and the European Guarantors, Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567- 7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf BV, a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self-Service Solutions S.ar.l (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, an “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party hereto from time to time, JPMORGAN CHASE BANK,
N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as collateral agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS Americas LLC, as European collateral agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
RECITALS:
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
WHEREAS, the Lenders have agreed to extend a revolving credit facility to the Borrowers, in an aggregate amount not to exceed $250,000,000, the proceeds of which shall be used to repay certain outstanding amounts and terminate the commitments under the Existing Revolving Credit Facility (the “Refinancing”), and to pay fees, commissions and expenses in connection with the foregoing (the events and transactions described above, together with the “Transactions” as defined in the TSA (as defined below), collectively, the “Transactions”), and to finance the ongoing working capital requirements of the Borrowers and their respective subsidiaries and for general corporate purposes; and
WHEREAS, each of the Credit Parties has agreed to secure the Obligations hereunder (subject to the applicable limitations set forth in the Credit Documents) by granting to the Applicable Collateral Agent, for the benefit of the Secured Parties (or, where not possible under the relevant local law, directly to the Secured Parties), a First Priority Lien on its ABL Collateral and a junior priority lien on its Fixed Asset Collateral;
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS AND INTERPRETATION
1.1Definitions. The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
“2024 Consent Solicitation and Exchange Offer” as defined in the TSA.
“ABL Collateral” means “ABL Priority Collateral” as defined in the Intercreditor Agreement. “ABR”, when used in reference to (a) a rate of interest, refers to the Alternate Base Rate, and (b)
any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate. All ABR Loans shall be denominated in Dollars.
“Accommodation Payment” as defined in Section 10.25.
“Account” as defined in the UCC.
“Account Debtor” means any Person obligated on an Account.
“Acquisition” means any transaction, or any series of related transactions, consummated on or after the Closing Date, by which any Credit Party (a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger, amalgamation or otherwise or
(b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of related transactions) at least a majority (in number of votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding Equity Interests of a Person.
“Acquisition Loans” means, for the purposes of Section 7.17(e) any Loan advanced under this Agreement whose purpose or actual use is, directly or indirectly, to finance (and/or refinance) (i) the acquisition of any Italian Guarantor (and/or of any Controlling Person of any Italian Guarantor) and/or (ii) the subscription of an equity interest of any Italian Guarantor (and/or of any Controlling Person of any Italian Guarantor) and/or (iii) the payment of any interest, fees, costs and expenses, stamp, registration or other Taxes in connection therewith and/or (iv) any existing indebtedness incurred for the purposes of (i),
(ii) and (iii) above.
“Additional Borrower” as defined in Section 5.14(a).
“Adjusted Daily Simple RFR” means, (i) with respect to any RFR Borrowing denominated in Pounds Sterling, an interest rate per annum equal to the Daily Simple RFR for Pounds Sterling and (ii) subject to Section 2.25 with respect to any RFR Borrowing denominated in Dollars, an interest rate per annum equal to (a) the Daily Simple RFR for Dollars, plus (b) 0.10%; provided that if the Adjusted Daily Simple RFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros for any Interest Period, an interest rate per annum equal to (a) the EURIBOR Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate; provided that if the Adjusted EURIBOR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Adjusted Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated in Dollars for any Interest Period, an interest rate per annum equal to (a) the Term SOFR Rate for such Interest Period, plus (b) 0.10%; provided that if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
“Administrative Agent” as defined in the preamble hereto and includes, for the avoidance of doubt, any designated branch or Affiliate of JPMorgan Chase Bank, N.A. designated by it to serve in such capacity.
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of the Parent Borrower or any of its Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims) pending against the Parent Borrower or any of its Subsidiaries or any property of the Parent Borrower or any of its Subsidiaries.
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
“Affected Lender” as defined in Section 2.17(c).
“Affected Loans” as defined in Section 2.17(c).
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, that Person. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise. For greater certainty, any reference to an Affiliate of the Agent, a Lender or any other Secured Party shall include a domestic or foreign branch of such Person.
“Agent” means each of the Administrative Agent, the Collateral Agent and the European Collateral Agent.
“Aggregate Amounts Due” as defined in Section 2.16.
“Agreed Currencies” means Dollars and each Alternative Currency. “Agreed Security Principles” has the meaning set forth on Annex I.
“Agreement” means this Revolving Credit and Guaranty Agreement, as it may be amended, supplemented or otherwise modified from time to time in accordance with its terms.
“Allocable Amount” as defined in Section 10.25.
“Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the NYFRB Rate in effect on such day plus ½ of 1% and (c) the Adjusted Term SOFR Rate for a one month Interest Period as published two (2) U.S. Government Securities Business Days prior to such day (or if such day is not a U.S. Government Securities Business Day, the immediately preceding U.S. Government Securities Business Day) plus 1%, provided that, for
the purpose of this definition, the Adjusted Term SOFR Rate for any day shall be based on the Term SOFR Reference Rate at approximately 5:00 a.m. Chicago time on such day (or any amended publication time for the Term SOFR Reference Rate, as specified by the CME Term SOFR Administrator in the Term SOFR Reference Rate methodology). Any change in the Alternate Base Rate due to a change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate shall be effective from and including the effective date of such change in the Prime Rate, the NYFRB Rate or the Adjusted Term SOFR Rate, respectively. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section
2.25 (for the avoidance of doubt, only until the Benchmark Replacement has been determined pursuant to Section 2.25(b)), then the Alternate Base Rate shall be the greater of clause (a) and (b) above and shall be determined without reference to clause (c) above. For the avoidance of doubt, if the Alternate Base Rate as determined pursuant to the foregoing would be less than 1.0%, such rate shall be deemed to be 1.0% for purposes of this Agreement.
“Alternate Rate” means the sum of (a) a rate per annum selected by the Administrative Agent, in its reasonable discretion in consultation with the Parent Borrower based on market conditions, reflecting the cost to the Lenders of obtaining funds, plus (b) the relevant Applicable Margin for Dollars set out under the heading “Applicable Margin for Term Benchmark Loans”. When used in reference to any Loan or Borrowing, “Alternate Rate” refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Rate.
“Alternative Currency” means Canadian Dollars, Sterling, Euros, and any additional currencies determined after the Closing Date by mutual agreement of the Borrowers, Lenders, Issuing Banks and Administrative Agent; provided that each such currency is a lawful currency that is readily available, freely transferable and not restricted and able to be converted into Dollars.
“Ancillary Document” as defined in Section 10.21.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to any Borrower or any of its Subsidiaries from time to time concerning or relating to bribery or corruption.
“Applicable Agent” means (a) with respect to the Revolving Commitments, extensions of credit thereunder, payments in respect thereof, and other matters pertaining thereto, the Administrative Agent,
(b) with respect to any action or determination under any U.S. Collateral Document or Canadian Collateral Document or Collateral thereunder, the Collateral Agent, (c) with respect to any action or determination under any European Collateral Document or Collateral thereunder, the European Collateral Agent.
“Applicable Collateral Agent” means (a) with respect to any action or determination under any
U.S. Collateral Document or Canadian Collateral Document or Collateral thereunder, the Collateral Agent and (b) with respect to any action or determination under any European Collateral Document or Collateral thereunder, the European Collateral Agent.
“Applicable Margin” means, subject to the proviso below, for any period, the applicable percentage per annum determined by reference to the average daily Excess Availability during such period as set forth below:
| | | | | | | | | | | |
Excess Availability | Applicable Margin for ABR/Canadian Prime Rate Loans | Applicable Margin for Term Benchmark Loans | Applicable Margin for RFR Loans |
Less than $125,000,000 | 2.00% | 3.00% | 3.00% |
Greater than or equal to $125,000,000 | 1.50% | 2.50% | 2.50% |
The Applicable Margin will be determined on the first Business Day after the date on which the Administrative Agent shall have received the most recent Borrowing Base Certificate delivered pursuant to Section 5.12(a) calculating the Excess Availability. At any time that any Borrower has not submitted to the Administrative Agent the applicable Borrowing Base Certificate as and when required under Section 5.12(a), the Applicable Margin shall be determined as if the Excess Availability was less than
$125,000,000 until such Borrower delivers such Borrowing Base Certificate; provided, however, that notwithstanding the foregoing, for the period from the Closing Date until the day on which the Administrative Agent has received the Borrowing Base Certificate required to be delivered hereunder for the first full fiscal month completed after the Closing Date, the Applicable Margin for (a) ABR/Canadian Prime Rate Loans shall be 2.00% per annum, (b) Term Benchmark Loans shall be 3.00% per annum and
(c) RFR Loans shall be 3.00% per annum.
“Applicable Reference Period” means as at any date of determination, the most recently ended Reference Period for which financial statements with respect to each fiscal quarter included in such Reference Period have been delivered pursuant to Section 5.1(a) or 5.1(b) (or, prior to the delivery of any such financial statements, the Reference Period ended September 30, 2022).
“Applicable Revolving Commitment Fee Percentage” means, for any period, a percentage rate equal to 0.50% per annum.
“Applicable Threshold” means on any date of determination, the amount equal to the greater of
(i) 12.5% of the Line Cap at such time and (ii) $25,000,000.
“Approved Counterparty” means each Agent or Lender or any Affiliate of such Agent or Lender who enters into a Cash Management Document, a Hedge Agreement and/or Bi-lateral LC/WC Agreement (regardless of whether such Cash Management Document, Hedge Agreement and/or Bi-lateral LC/WC Agreement was entered into prior to the Closing Date) (including any Person who is an Agent or Initial Lender (and, in each case, any Affiliate thereof) at the time any such Cash Management Document, Hedge Agreement and/or Bi-lateral LC/WC Agreement, as the case may be, is entered into (or, with respect to any Cash Management Documents, Hedge Agreements and/or Bi-lateral LC/WC Agreements that were entered into prior to the Closing Date, any Person who is an Agent or Initial Lender (and, in each case, any Affiliate thereof) on the Closing Date) but subsequently ceases to be an Agent or Lender), including, without limitation, each such Affiliate that enters into a joinder agreement for such purpose with the Collateral Agent or the European Collateral Agent.
“Approved Deposit Account” means a Deposit Account that is the subject of an effective Deposit Account Control Agreement and that is maintained by any Credit Party with a Deposit Account Bank. “Approved Deposit Account” includes all monies on deposit in a Deposit Account and all certificates and instruments, if any, representing or evidencing such Deposit Account.
“Approved Electronic Communications” means each notice, demand, communication, information, document and other material that any Credit Party is obligated to, or otherwise chooses to, provide to any Agent pursuant to any Credit Document or the transactions contemplated therein,
including (a) any supplement to the Guaranty and any joinder to the Security Agreement, any Canadian Collateral Document or European Collateral Document and any other written Contractual Obligation required to be delivered in respect of any Credit Document or the transactions contemplated therein and
(b) any financial statement, financial and other report, notice, request, certificate and other information material; provided, however, that “Approved Electronic Communications” shall exclude (i) any Notice, and any other notice, demand, communication, information, document and other material relating to a request for a new, or a conversion of an existing, Borrowing or Credit Extension, (ii) any notice pursuant to Sections 2.11, 2.12 and 2.13 and any other notice relating to the payment of any principal or other amount due under any Credit Document prior to the scheduled date therefor, (iii) all notices of any Default or Event of Default and (iv) any notice, demand, communication, information, document and other material required to be delivered to satisfy any of the conditions set forth in Section 3 or Section 2.3(a) or any other condition to any Borrowing or other Credit Extension hereunder or any condition precedent to the effectiveness of this Agreement.
“Approved Electronic Platform” as defined in Section 9.3(a).
“Approved Securities Intermediary” means a “securities intermediary” or “commodity intermediary” (as such terms are defined in the UCC) selected or approved by the Administrative Agent (such approval not to be unreasonably withheld).
“Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit E.
“Assignment Closing Date” as defined in Section 10.6(b).
“Auditor’s Determination” as defined in Section 7.17(d).
“Authorized Officer” means, as applied to any Person, (i) the principal executive officers, managing members or general partners of such Person, including any individual holding the position of chairman of the board (if an officer), chief executive officer, president or one of its vice presidents, chief financial officer, treasurer, assistant treasurer, controller, secretary or assistant treasurer (but, in any event, with respect to financial matters, “Authorized Officer” shall mean such Person’s chief financial officer, treasurer, assistant treasurer or controller) or, in each case, the equivalent thereof and provided such officer is authorized to represent that Credit Party and (ii) in the case of a European Credit Party, each person performing similar duties as the foregoing persons listed in clause (i) (including any directors of a European Credit Party acting in such capacity).
“Available Currency” means with respect to (i) Tranche A Loans, Dollars and Canadian Dollars, (ii) Tranche A Swing Line Loans, Dollars, (iii) Tranche A Letters of Credit, Dollars, Canadian Dollars, Euros and Pounds Sterling, (iv) Tranche B Loans, Dollars and Euros and (v) Tranche C Loans, Dollars, Euros and Pounds Sterling.
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark for any Agreed Currency, as applicable, any tenor for such Benchmark (or component thereof) or payment period for interest calculated with reference to such Benchmark (or component thereof), as applicable, that is or may be used for determining the length of an Interest Period for any term rate or otherwise, for determining any frequency of making payments of interest calculated pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to clause (e) of Section 2.25.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
“Bail-In Legislation” means (a) 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, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
“Bailee’s Letter” means a letter substantially in the form of Exhibit K (or such other form as may reasonably be agreed to by the Administrative Agent), with such amendments or modifications as may be approved by the Administrative Agent and the Parent Borrower and executed by any Person (other than a Borrower) that is in possession of inventory on behalf of any Borrower pursuant to which such Person acknowledges, among other things, the Applicable Collateral Agent’s Lien with respect thereto or such documentation as is required in relation to the perfection or control of security and/or blocking or control of Collateral pursuant to any relevant Canadian Collateral Document or European Collateral Document.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
“Belgian Borrower” as defined in the recitals hereto or any other Person added as a Borrower that is incorporated in Belgium in accordance with the terms hereof.
“Belgian Borrowing Base” means, with respect to the Belgian Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(a)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Belgian Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(b)any applicable Reserve then in effect to the extent applicable to the Belgian Borrower or such Eligible Receivables.
“Belgian Collateral Documents” means, collectively, the Belgian Security Agreement and any other agreements, instruments and documents executed in connection with this Agreement and the Agreed Security Principles that are intended to create, perfect or evidence Liens on assets of any Belgian Credit Party to secure any of the Obligations, including, without limitation, all other security agreements, pledge agreements, mortgage deeds, pledges, powers of attorney, assignments, and financing statements, in each case now or hereafter executed by any Belgian Credit Party and delivered to the Applicable Agent that are intended to create, perfect or evidence Liens on assets of any Belgian Credit Party or executed by a Credit Party in respect of shares in a Belgian Credit Party to secure any of the Obligations.
“Belgian Credit Party” means each Belgian Borrower and each Belgian Guarantor.
“Belgian Guarantor” means any European Guarantor incorporated under the laws of Belgium.
“Belgian Insolvency Event” means with respect to a Belgian Credit Party: any event whereby such person (i) has been dissolved (ontbonden / dissoute) or resolved to enter into liquidation (vereffening
/ liquidation), (ii) had its assets placed under administration (onder bewind gesteld / placés sous administration), (iii) ceased to pay its debts as they fall due (staking van betaling / cessation de paiement), (iv) filed an application for or been subject to proceedings for bankruptcy (faillissement / faillite) or judicial reorganisation (gerechtelijke reorganisatie / réorganisation judiciaire), (v) has been declared bankrupt (failliet verklaard / declarées en faillite), or (vi) has been subjected to measures such as the appointment of a provisional administrator (voorlopig bewindvoerder / administrateur provisoire) or sequestrator (sekwester / séquestre).
“Belgian Non-Cooperative Jurisdiction” means a tax haven country, a low-tax jurisdiction or a non-cooperative jurisdiction within the meaning of article 307, §1/2 of the Belgian Income Tax Code 1992, as amended.
“Belgian Outstandings” means, with respect to any Belgian Borrower at any particular time, the principal amount of the Tranche C Loans made to such Belgian Borrower outstanding at such time.
“Belgian Security Agreement” means the Belgian law governed security agreement in respect of accounts, receivables and movable assets dated on or about the date of this Agreement and made among each Belgian Credit Party as pledgor and the European Collateral Agent as pledgee.
“Belgian Tax Qualifying Lender” means:
(a) a credit institution within the meaning of article 107, §2, 5, a), second dash of the Royal Decree implementing the Belgian Income Tax Code 1992 that is acting through its head office and is resident for tax purposes in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxa- tion agreement makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area;
(b)a credit institution within the meaning of article 107, §2, 5, a), second dash of the Royal Decree implementing the Belgian Income Tax Code 1992 that is acting through a perma- nent establishment which (i) itself qualifies as a credit institution within the meaning of the aforementioned article 107, §2, 5, a) second dash and (ii) is located in a country with which Belgium has entered into a double taxation agreement that is in force (irrespective of whether or not the double taxation agreement makes provision for exemption from tax imposed by Belgium) or in a country which is a member state of the European Economic Area;
(c)a professional investor within the meaning of article 105, 3° of the Royal Decree imple- menting the Belgian Income Tax Code 1992 which is a company resident in Belgium for tax purposes or acting through a permanent establishment in Belgium;
(d)a credit institution within the meaning of article 105, 1°, a) of the Royal Decree imple- menting the Belgian Income Tax Code 1992 which is a resident for tax purposes in Bel- gium or which is acting through a permanent establishment in Belgium; or
(e)a Belgian Treaty Lender.
“Belgian Treaty Lender” means, in respect of a payment under a Credit Document, a Lender
which:
(a)is a resident (as defined in the relevant double taxation agreement) in a country with which Belgium has a double taxation agreement according residents of that country an exemption from Belgian taxation on interest;
(b)does not carry on a business in Belgium through a permanent establishment with which a Lender’s participation in the Loan is effectively connected; and
(c)fulfills any conditions which must be fulfilled under the relevant double taxation agree- ment for residents of that country in order to obtain an exemption from Belgian taxation on interest (subject to any necessary procedural formalities).
“Benchmark” means, initially, with respect to any (i) RFR Loan in any Agreed Currency, the applicable Relevant Rate for such Agreed Currency and (ii) Term Benchmark Loan, the Relevant Rate for such Agreed Currency; provided that if a Benchmark Transition Event and the related Benchmark Replacement Date have occurred with respect to the applicable Relevant Rate or the then-current Benchmark for such Agreed Currency, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to clause
(b) of Section 2.25.
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date; provided that, in the case of any Loan denominated in an Alternative Currency, “Benchmark Replacement” shall mean the alternative set forth in (2) below:
(1)in the case of any Loan denominated in Dollars, the Adjusted Daily Simple RFR for Dollar Borrowings;
(2)the sum of: (a) the alternate benchmark rate that has been selected by the Administrative Agent and the Parent Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for syndicated credit facilities denominated in the applicable Agreed Currency at such time in the United States and (b) the related Benchmark Replacement Adjustment.
If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be equal to the Floor for the purposes of this Agreement and the other Credit Documents.
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then- current Benchmark with an Unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such Unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Parent Borrower for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread
adjustment, for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for syndicated credit facilities denominated in the applicable Agreed Currency at such time.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement and/or any Term Benchmark Loan denominated in Dollars, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “U.S. Government Securities Business Day,” the definition of “RFR Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in consultation with the Parent Borrower may be appropriate to reflect the adoption and implementation of such Benchmark and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark exists, in such other manner of administration as the Administrative Agent decides in consultation with the Parent Borrower is reasonably necessary in connection with the administration of this Agreement and the other Credit Documents).
“Benchmark Replacement Date” means, with respect to any Benchmark, the earliest to occur of the following events with respect to such then-current Benchmark:
(1)in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and
(b) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof); or
(2)in the case of clause (3) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non- representativeness will be determined by reference to the most recent statement or publication referenced in such clause (3) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.
For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or
(2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Transition Event” means, with respect to any Benchmark, the occurrence of one or more of the following events with respect to such then-current Benchmark:
(1)a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
(2)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Federal Reserve Board, the NYFRB, the CME Term SOFR Administrator, the central bank for the Agreed Currency applicable to such Benchmark, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), in each case, which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
(3)a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer, or as of a specified future date will no longer be, representative.
For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any)
(x) beginning at the time that a Benchmark Replacement Date pursuant to clauses (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.25 and (y) ending at the time that a Benchmark Replacement has replaced such then-current Benchmark for all purposes hereunder and under any Credit Document in accordance with Section 2.25.
“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 and subject to 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.”
“BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.
“Bi-lateral LC/WC Agreement” means an agreement between the Parent Borrower and/or any of its Subsidiaries and a financial institution providing for the issuance of letters of credit, bank guarantees and/or similar obligations which agreement has been designated in writing as a Bi-lateral LC/WC Agreement by the Parent Borrower to the Administrative Agent, which designation shall include a certification as to the maximum principal exposure amount permitted under such agreement. For the avoidance of doubt the Parent Borrower may rescind such designation (or deliver a certificate certifying as to a modified amount of such maximum exposure amount that shall constitute Obligations) by written notice to the Administrative Agent.
“Blockage Notice” means a notice of “control” (as defined in the UCC) or its applicable equivalent contemplated to be delivered pursuant to each Deposit Account Control Agreement.
“Blocking Regulation” means Council Regulation (EC) 2271/96. “Board of Directors” means:
(a)with respect to a corporation, the board of directors or managers (as applicable) of the corporation;
(b)with respect to a partnership, the Board of Directors of the general partner of the partnership; and
(c)with respect to any other Person, the board or committee of such Person serving a similar function.
“Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
“Borrower DTTP Filing” means an HM Revenue & Customs’ Form DTTP2, duly completed and filed by the relevant UK Borrower within the applicable time limit, which contains the scheme reference number and jurisdiction of tax residence provided by the Lender to the relevant UK Borrower and the Administrative Agent.
“Borrowers” means the collective reference to the US Borrowers, the Canadian Borrowers and the European Borrowers, and each of the foregoing, individually, a “Borrower.”
“Borrowers’ Accountants” means KPMG LLP or other independent nationally-recognized public accountants reasonably acceptable to the Administrative Agent.
“Borrowing” means (a) the borrowing of one Type of Loan of a single currency by a Borrower, from the Lenders (or from a Swing Line Lender, in the case of Swing Line Loans) on a given date (or resulting from a conversion or conversions on such date) having in the case of Term Benchmark Loans the same Interest Period and (b) a Protective Advance.
“Borrowing Base” means the French Borrowing Base, each German Borrowing Base, the Dutch Borrowing Base, the Canadian Borrowing Base, the Swedish Borrowing Base, the Spanish Borrowing Base, the Italian Borrowing Base, the UK Borrowing Base, the Belgian Borrowing Base, the Polish Borrowing Base, the US Borrowing Base, the Global Borrowing Base, the European Borrowing Base or the Specified Borrowing Base, as the case may be.
“Borrowing Base Certificate” means a certificate of each Borrower the assets of which are included in the applicable Borrowing Base substantially in the form of Exhibit L.
“Borrowing Conditions” means, as applicable, the Tranche A Borrowing Conditions, the Tranche B Borrowing Conditions and the Tranche C Borrowing Conditions.
“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close. In addition to the foregoing, a Business Day shall be (a) for Loans denominated in Euros and in relation to the calculation or computation of EURIBOR, any day which is a TARGET Day, (b) for RFR Loans and any interest rate settings, fundings, disbursements, settlements or payments of any such RFR Loan, or any other dealings in the applicable Agreed Currency of such RFR Loan, any such day that is only a RFR Business Day, (c)
for Loans referencing the Adjusted Term SOFR Rate and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans referencing the Adjusted Term SOFR Rate or any other dealings of such Loans referencing the Adjusted Term SOFR Rate, any such day that is a U.S. Government Securities Business Day, and (d) for Loans denominated in Canadian Dollars or made to the Canadian Borrower and any interest rate settings, fundings, disbursements, settlements or payments of any such Loans or any other dealings in Canadian Dollars, any day (other than a Saturday or a Sunday) on which banks are open for business in Toronto, Ontario (Canada), (f) for any interest rate settings, fundings, disbursements, settlements or payments of any Loans or any other dealings serviced out of the London branch of JPMorgan, any day (other than a Saturday or a Sunday) on which banks are open for business in London, England and (g) with respect to any Loan made available to the French Borrower, the term “Business Day” shall also exclude any day which is a legal holiday in Paris, France or is a day on which banking institutions located in Paris, France are authorized or required by law or other governmental action to close.
“CAM” means the mechanism for the allocation and exchange of interests in Loans and other extensions of credit hereunder and collections in respect thereof established in Section 8.5.
“CAM Exchange” means the exchange of the Lenders’ interests provided for in Section 8.5.
“CAM Exchange Date” means the date on which any event referred to in paragraph (f) or (g) of Section 8.1 shall occur in respect of any Borrower or the date on which the Loans are accelerated in accordance with the last paragraph of Section 8.1.
“CAM Percentage” means, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the aggregate Dollar Equivalent of the Obligations owed to such Lender (whether or not at the time due and payable) and such Lender’s participations in undrawn amounts of Letters of Credit immediately prior to the CAM Exchange Date and (b) the denominator shall be the aggregate Dollar Equivalent (as so determined) of the Obligations owed to all the Lenders (whether or not at the time due and payable) and the aggregate undrawn amount of all Letters of Credit immediately prior to the CAM Exchange Date.
“Canadian Anti-Money Laundering & Anti-Terrorism Legislation” means, collectively, the Criminal Code, R.S.C. 1985, c. C-46, the Proceeds of Crime Act (Money Laundering) and Terrorist Financing Act (Canada) and the United Nations Act (Canada), R.S.C. 1985, c. U-2 or any similar Canadian legislation, together with all rules, regulations and interpretations thereunder or related thereto including, without limitation, the Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism and the United Nations Al Qaida and Taliban Regulations promulgated under the United Nations Act.
“Canadian Blocked Person” means any Person that is a “politically exposed foreign person” as defined in the Freezing Assets of Corrupt Foreign Officials Act (Canada), or “terrorist group” as defined in Part II.1 of the Criminal Code (Canada).
“Canadian Borrower” shall have the meaning given to such term in the preamble hereto, together with any other Person added as a Canadian Borrower in accordance with the terms hereof.
“Canadian Borrowing Base” means:
(a)The sum of:
(i)in the case of Eligible Receivables, the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Canadian Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
plus
(ii)in the case of Eligible Inventory, the lesser of (A) 70% of the value of Eligible Inventory of the Canadian Borrower (valued, for each class of such Eligible Inventory, at the lower of cost and market on a first-in, first-out basis) constituting each class of such Eligible Inventory at such time and (B) 90% of the Net Orderly Liquidation Value Percentage of such Eligible Inventory of the Canadian Borrower (valued at the lower of cost and market on a first-in, first-out basis) constituting each class of Eligible Inventory at such time;
minus
(b)any applicable Reserve then in effect to the extent applicable to such Canadian Borrower, such Eligible Receivables or such Eligible Inventory.
“Canadian Collateral and Guarantee Requirement” means, at any time and solely with respect to each Canadian Credit Party or Canadian Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary, the requirement that:
(a)the Administrative Agent and the Collateral Agent shall have received from (i) each Canadian Credit Party or Canadian Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary either (x) a counterpart of this Agreement duly executed and delivered on behalf of such Person in its capacity as a Guarantor or (y) in the case of any Person that becomes or is required to become a Canadian Credit Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to this Agreement, in form and substance reasonably satisfactory to the Administrative Agent, duly executed and delivered on behalf of such Person in its capacity as a Guarantor, (ii) each Canadian Credit Party or Canadian Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary either (x) a counterpart of the Canadian Security Agreement and, if applicable, a deed of hypothec, each duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Credit Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Canadian Security Agreement and, if applicable, a deed of hypothec, each in the form specified therein, duly executed and delivered on behalf of such Person and
(iii) each Canadian Credit Party or Canadian Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary either (x) a counterpart of the Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a Canadian Credit Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Credit Documents executed and delivered after the Closing Date, documents and, to the extent reasonably requested by the Administrative Agent or the Collateral Agent (acting at the direction of the Administrative Agent), opinions, documents and certificates of the type referred to in Section 3.1;
(b)all outstanding Equity Interests of any Subsidiary of the Parent Borrower (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any Canadian Credit Party shall have been pledged pursuant to the Canadian Security Agreement and the Collateral Agent shall have
received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Parent Borrower or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any Canadian Credit Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Canadian Security Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including PPSA financing statements, Deposit Account Control Agreements, Securities Account Control Agreements and Intellectual Property Security Agreements, required by the Canadian Security Agreement or requirements of Law and reasonably requested by the Administrative Agent to be filed, delivered, registered or recorded to create the Liens intended to be created by the Canadian Security Agreement and perfect such Liens to the extent required by, and with the priority required by, the Canadian Security Agreement and the other provisions of the term “Canadian Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording;
(e)the Collateral Agent shall have received as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Collateral Agent, acting at the direction of the Administrative Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Parent Borrower and agreed to by the Collateral Agent, acting at the direction of the Administrative Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent, acting at the direction of the Administrative Agent, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.5, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Administrative Agent may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Collateral Agent, acting at the direction of the Administrative Agent, of payment by the Parent Borrower or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey-related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer) and
(vi) such legal opinions as the Administrative Agent or Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)the Administrative Agent and the Collateral Agent shall have received each Deposit Account Control Agreement and each Securities Account Control Agreement required by, and at the times set forth in, Section 5.15.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Canadian Credit Parties, or the provision of Guarantees by any Canadian Subsidiary (i) if, and for so long as and to the extent that the Administrative Agent and the Parent Borrower reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to the Parent Borrower and its Subsidiaries (including the imposition of material withholding or other Taxes)), outweighs the benefits to be obtained by the Lenders therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the PPSA or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral of the Canadian Credit Parties shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the PPSA or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Canadian Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Canadian Security Agreement, (c) [reserved], (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of PPSA financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 other than the filing of PPSA financing statements and, other than the filing of PPSA financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Credit Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. or Canadian jurisdiction or required by the laws of any non-U.S. or Canadian jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States or Canada (including any Equity Interests of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets, (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of PPSA financing statements), (h) [reserved] and (i) in no event shall the Collateral include any Excluded Assets. The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of the Guaranty by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary, subject to the terms of the Intercreditor Agreement (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing 2023 Term Loans and/or the Extended Term Loans, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Canadian Collateral Documents” means, collectively, the Canadian Security Agreement, and any other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens on assets of any Credit Party to secure any of the Obligations, including, without limitation, all other security agreements, pledge agreements, deeds of hypothec, debentures, share charges, pledges, powers of attorney, assignments, and financing statements, in each case now or hereafter executed by any Canadian Credit Party and delivered to the Applicable Agent that are intended to create, perfect or evidence Liens on assets of any Canadian Credit Party to secure any of the Obligations.
“Canadian Credit Parties” means, each of, and collectively, the Canadian Borrower and any Credit Party organized under applicable law of Canada or any province or territory of Canada that is a party to this Agreement as of the Closing Date or that becomes a party to this Agreement after the Closing Date pursuant to a joinder agreement, and their respective successors and permitted assigns, and the term “Canadian Credit Party” means any one of them or all of them individually, as the context may require.
“Canadian Defined Benefit Plan” means a Canadian Pension Plan for the purposes of any applicable pension benefits standards statute or regulation in Canada, which contains a “defined benefit provision”, as defined in subsection 147.1(1) of the Tax Act.
“Canadian Dollars” or “Cdn$” means the lawful currency of Canada.
“Canadian Economic Sanctions and Export Control Laws” means any Canadian laws, regulations or orders governing transactions in controlled goods or technologies or dealings with countries, entities, organizations, or individuals subject to economic sanctions and similar measures, including the Special Economic Measures Act (Canada), the United Nations Act (Canada), the Freezing Assets of Corrupt Foreign Officials Act (Canada), Part II.1 of the Criminal Code (Canada) and the Export and Import Permits Act (Canada), and any related regulations.
“Canadian Obligations” means all obligations of every nature of each Canadian Credit Party under the Credit Documents, together with all obligations from time to time owed to the Agents (including former Agents), the Lenders or any of them and Approved Counterparties or any of them, under any Cash Management Document, Hedge Agreement or Bi-lateral LC/WC Agreement, in each case whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any Canadian Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise.
“Canadian Outstandings” means, with respect to any Canadian Borrower at any particular time, the principal amount of the Tranche A Loans made to such Canadian Borrower outstanding at such time.
“Canadian Pension Event” means (a) the whole or partial withdrawal of a Canadian Credit Party or another Credit Party from a Canadian Defined Benefit Plan during a plan year; or (b) the filing of a notice of intent to terminate in whole or in part a Canadian Defined Benefit Plan or the treatment of a Canadian Defined Benefit Plan amendment as a termination or partial termination; or (c) the institution of proceedings by any Governmental Authority to terminate in whole or in part or have a trustee appointed to administer a Canadian Defined Benefit Plan; or (d) any statutory deemed trust or Lien, other than a Permitted Lien, arises in connection with a Canadian Defined Benefit Plan, or (e) any other event or condition which might constitute grounds for the termination of, winding up or partial termination or winding up or the appointment of trustee to administer, any Canadian Defined Benefit Plan.
“Canadian Pension Plan” means a pension plan that is covered by the applicable pension standards laws of any jurisdiction in Canada including the Pension Benefits Act (Ontario) and the Tax Act and that is either (a) maintained or sponsored by the Canadian Credit Party for employees or
(b) maintained pursuant to a collective bargaining agreement, or other arrangement under which more than one employer makes contributions and to which the Canadian Credit Party is making or accruing an obligation to make contributions or has within the preceding five years made or accrued such contributions, but “Canadian Pension Plan” shall not include the Canada Pension Plan (CPP) as maintained by the government of Canada or the Quebec Pension Plan (QPP) as maintained by the government of Quebec or the Ontario Retirement Pension Plan.
“Canadian Prime” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Canadian Prime Rate.
“Canadian Prime Rate” means, on any day, the rate determined by the Administrative Agent to be the higher of (i) the rate equal to the PRIMCAN Index rate that appears on the Bloomberg screen at 10:15 a.m. Toronto time on such day (or, in the event that the PRIMCAN Index is not published by Bloomberg, any other information services that publishes such index from time to time, as selected by the Administrative Agent in its reasonable discretion) and (ii) the average rate for 30 day Canadian Dollar- denominated bankers’ acceptances displayed and identified as such by Refinitiv (or, in the event such rate does not appear on such page or screen, on any successor or substitute page or 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’s in its reasonable discretion) as of 10:15 a.m. Toronto local time on such day and, if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Administrative Agent after 10:15 a.m. Toronto local time to reflect any error in the posted rate of interest or in the posted average annual rate of interest), plus 1% per annum; provided that if any of the above rates shall be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement. Any change in the Canadian Prime Rate due to a change in the PRIMCAN Index or in the average rate for 30 day Canadian Dollar-denominated bankers’ acceptances displayed and identified as such by Refinitiv shall be effective from and including the effective date of such change in the PRIMCAN Index or in the 30 day Canadian Dollar-denominated bankers’ acceptances displayed and identified as such by Refinitiv, respectively.
“Canadian Priority Payable Reserves” means any and all reserves which the Administrative Agent deems necessary, in its Permitted Discretion, for amounts owing by a Canadian Credit Party (or any other Person for which any Canadian Credit Party has joint and several liability) secured by any Liens, choate or inchoate, which rank or are capable of ranking in priority to the Administrative Agent’s Liens and/or for amounts which may represent costs relating to the enforcement of the Administrative Agent’s Liens including, without limitation, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, salaries, commission or compensation, including vacation pay (including as provided for under WEPPA), amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance, all amounts deducted or withheld and not paid and remitted when due under the Tax Act, amounts currently or past due and not paid for realty, municipal or similar taxes, any and all solvency deficiencies, unfunded liabilities on wind-up or wind-up deficiencies in regards to any Canadian Defined Benefit Plan (to the extent impacting personal or moveable property), amounts in respect of rights or claims of suppliers under section 81.1 of the Bankruptcy and Insolvency Act (Canada) and all amounts currently or past due and not contributed, remitted or paid to any Canadian Pension Plan or under the Canada Pension Plan, the Pension Benefits Act (Ontario), the Quebec Pension Plan (QPP) or any similar legislation.
“Canadian Security Agreement” means that certain Canadian Security Agreement (including any and all supplements thereto), dated as of the date hereof, by and among the Credit Parties party thereto and the Applicable Agent, for the benefit of the Applicable Agent and the other Secured Parties, any other Canadian pledge and security agreement and any deed of hypothec entered into by any Credit Party prior to, on or after the date of this Agreement in connection with this Agreement.
“Canadian Subsidiary” means each Subsidiary incorporated, formed or organized, under the laws of Canada or a province or territory thereof.
“Capital Expenditures” means, for any period for any Person, the aggregate of all cash expenditures of such Person during such period determined on a consolidated basis that are or should be included in “purchase of property and equipment” or similar items, in each case, of a type which would be treated as capital expenditures in accordance with GAAP, reflected in the statement of cash flows of such Person other than (a) any expenditures financed with proceeds from the issuance of Capital Stock by the Parent Borrower, insurance proceeds or asset sales permitted under Section 6.3 and (b) expenditures for leasehold improvements for which such Person is reimbursed in cash (other than by an Affiliate of such Person) substantially concurrently with the making of such expenditures.
“Capital Impairment” as defined in Section 7.17(d).
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including, without limitation, partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Cash” means money, currency or a credit balance in any demand account or Deposit Account. “Cash Collateral Account” means any Deposit Account or Securities Account that is (a)
established by any Agent from time to time in its sole discretion to receive cash and Cash Equivalents (or purchase cash or Cash Equivalents with funds received) from the Credit Parties or Persons acting on their behalf pursuant to the Credit Documents, (b) with such depositaries and securities intermediaries as such Agent may determine in its sole discretion, (c) in the name of the Applicable Agent (although such account may also have words referring to a Borrower and the account’s purpose), (d) under the control of the Applicable Agent and (e) in the case of a Securities Account, with respect to which the Applicable Agent shall be the Entitlement Holder and the only Person authorized to give Entitlement Orders with respect thereto.
“Cash Equivalents” means (i) Dollars, Canadian Dollars, Swiss Francs, Pounds Sterling, Japanese Yen, Euros, any national currency of any participating member state of the European Union and any other Available Currencies; (ii) securities issued directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof), (iii) Dollar denominated time deposits, certificates of deposit, demand deposits, overnight bank deposits and bankers’ acceptances of any domestic or foreign commercial bank having capital and surplus of not less than $500,000,000 in the case of U.S. banks and $100,000,000 (or the U.S. dollar equivalent as of the date of determination) in the case of non U.S. banks (any such bank, an “Approved Lender”), (iv) commercial paper issued by any Lender or Approved Lender or by the parent company of any Lender or Approved Lender, commercial paper with a short-term commercial paper rating of at least investment grade or the equivalent thereof, marketable short term money market and similar funds of at least investment grade or the equivalent thereof, (v) investment grade bonds and preferred stock of investment grade companies, including but not
limited to municipal bonds, corporate bonds, treasury bonds, etc., (vi) readily marketable direct obligations issued by (x) any state, commonwealth or territory of the United States or any political subdivision or taxing authority thereof or (y) any foreign government or any political subdivision or public instrumentality, in each case of at least investment grade or the equivalent thereof, (vii) foreign Investments that are of similar type of, and that have a rating comparable to, any of the Investments referred to in the preceding clauses (i) through (vi) above, (viii) investments in money market funds substantially all the assets of which are comprised of securities of the types described in clauses (i) through (vii) above and (ix) other securities and financial instruments which offer a security comparable to those listed above.
“Cash Management Document” means any certificate, agreement or other document executed by any Credit Party in respect of the Cash Management Obligations of any Credit Party.
“Cash Management Obligation” means, as applied to any Person, any direct or indirect liability, contingent or otherwise, of such Person (i) in respect of cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements) which have been designated in writing as Cash Management Obligations by the Parent Borrower to the Administrative Agent, which designation shall include a certification as to the maximum principal exposure amount that shall constitute Cash Management Obligations or (ii) under Bi-lateral LC/WC Agreements, in each case, provided by any Approved Counterparty (regardless of whether these or similar services or agreements were provided or entered into prior to the date hereof by any Approved Counterparty), including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith. For the avoidance of doubt, the Parent Borrower may rescind such designation under clause (i) above (or deliver a certificate certifying as to a modified amount of such maximum exposure amount that shall constitute Cash Management Obligations) by written notice to the Administrative Agent.
“CBR Loan” means a Loan that bears interest at a rate determined by reference to the Central Bank Rate.
“CBR Spread” means the Applicable Margin, applicable to such Loan that is replaced by a CBR
Loan.
“CDOR” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the CDOR Rate.
“CDOR Rate” means, for the relevant Interest Period, the Canadian Dollar offered rate which, in turn means on any day the annual rate of interest determined with reference to the arithmetic average of the discount rate quotations of all institutions listed in respect of the relevant Interest Period for Canadian Dollar-denominated bankers’ acceptances displayed and identified as such by Refinitiv (the “CDOR Screen Rate”), as of approximately 10:15 a.m. Toronto local time on such day and, if such day is not a Business Day, then on the immediately preceding Business Day (as adjusted by the Administrative Agent after 10:15 a.m. Toronto local time to reflect any error in the posted rate of interest or in the posted average annual rate of interest); provided, that, (x) if the CDOR Rate shall be less than the Floor, such rate shall be deemed to be equal to the Floor for purposes of this Agreement and (y) if the CDOR Screen Rate is not available on any particular day, then the Canadian deposit offered rate for such date shall be the rate per annum equivalent to the annual discount rate as of approximately 10:15 a.m. Toronto local time on such day at which a Canadian chartered bank listed on Schedule 1 of the Bank Act (Canada) as selected by the Administrative Agent is then offering to purchase Canadian Dollar-denominated bankers’ acceptances accepted by it having such specified term (or a term as closely as possible comparable to such specified term).
“CDOR Screen Rate” has the meaning ascribed thereto in the definition of the “CDOR Rate”.
“Central Bank Rate” means, the greater of (I)(A) for any Loan denominated in (a) Pounds Sterling, the Bank of England (or any successor thereto)’s “Bank Rate” as published by the Bank of England (or any successor thereto) from time to time, (b) Euro, one of the following three rates as may be selected by the Administrative Agent in its reasonable discretion: (1) the fixed rate for the main refinancing operations of the European Central Bank (or any successor thereto), or, if that rate is not published, the minimum bid rate for the main refinancing operations of the European Central Bank (or any successor thereto), each as published by the European Central Bank (or any successor thereto) from time to time, (2) the rate for the marginal lending facility of the European Central Bank (or any successor thereto), as published by the European Central Bank (or any successor thereto) from time to time or (3) the rate for the deposit facility of the central banking system of the Participating Member States, as published by the European Central Bank (or any successor thereto) from time to time and (c) any other Alternative Currency determined after the Closing Date, a central bank rate as determined by the Administrative Agent in its reasonable discretion; plus (B) the applicable Central Bank Rate Adjustment and (II) the Floor.
“Central Bank Rate Adjustment” means, for any day, for any Loan denominated in (a) Euro, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of the Adjusted EURIBOR Rate for the five most recent Business Days preceding such day for which the EURIBOR Screen Rate was available (excluding, from such averaging, the highest and the lowest Adjusted EURIBOR Rate applicable during such period of five Business Days) minus (ii) the Central Bank Rate in respect of Euro in effect on the last Business Day in such period, (b) Pounds Sterling, a rate equal to the difference (which may be a positive or negative value or zero) of (i) the average of Adjusted Daily Simple RFR for Pounds Sterling Borrowings for the five most recent RFR Business Days preceding such day for which Adjusted Daily Simple RFR for Pounds Sterling Borrowings was available (excluding, from such averaging, the highest and the lowest such Adjusted Daily Simple RFR applicable during such period of five RFR Business Days) minus (ii) the Central Bank Rate in respect of Pounds Sterling in effect on the last RFR Business Day in such period and (c) any other Alternative Currency determined after the Closing Date, a Central Bank Rate Adjustment as determined by the Administrative Agent in its reasonable discretion. For purposes of this definition, (x) the term Central Bank Rate shall be determined disregarding clause (B) of the definition of such term and (y) the EURIBOR Rate on any day shall be based on the EURIBOR Screen Rate on such day at approximately the time referred to in the definition of such term for deposits in the applicable Agreed Currency for a maturity of one month.
“Change of Control” means (i) any Person, including a “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) which includes such Person, other than the Consenting Party Group, shall purchase or otherwise acquire, directly or indirectly, beneficial ownership of Voting Stock of the Parent Borrower and, as a result of such purchase or acquisition, any such Person (together with its Affiliates), shall directly or indirectly beneficially own in the aggregate Voting Stock representing more than 30% of the combined voting power of the Parent Borrower’s Voting Stock; (ii) the Parent Borrower shall cease to directly (or indirectly through one or more other Credit Parties each of which shall have satisfied the Collateral and Guarantee Requirement applicable to it) own 100% of the Voting Stock of each other Borrower or (iii) any event or circumstance which causes a “change of control” (as such term (or any reasonably synonymous term) is defined in the definitive documentation governing any Fixed Asset Facility (or under any documents governing any Indebtedness with aggregate principal amount in excess of $50,000,000 that has refinanced any Fixed Asset Facility)).
“Closing Date” means December 29, 2022.
“Closing Date Certificate” means a Closing Date Certificate substantially in the form of Exhibit G-1.
“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term SOFR (or a successor administrator).
“Co-Documentation Agents” means Bank of America, N.A. and Deutsche Bank, in their respective capacities as co-documentation agents for the Revolving Credit Facility.
“Co-Syndication Agents” means JPMorgan Chase Bank, N.A. and PNC Bank, National Association, in their respective capacities as co-syndication agents for the Revolving Credit Facility.
“Collateral” means, collectively, all of the real, personal and mixed property (including Capital Stock) and interests therein and proceeds thereof, whether now owned or hereafter acquired, in or upon which a Lien is granted pursuant to any of the Collateral Documents as security for the Obligations (but shall in all events with respect to Credit Parties organized or incorporated outside the United States (or any state or territory thereof), other than the Canadian Credit Parties, be limited by and subject in all respects to the Agreed Security Principles and exclude all Foreign Excluded Assets).
“Collateral Agent” as defined in the preamble hereto and includes, for the avoidance of doubt, any designated branch or Affiliate of JPMorgan Chase Bank, N.A. designated by it to serve in such capacity for purposes of any particular Collateral Document (other than the French Collateral Documents or Italian Collateral Documents) or Collateral thereunder.
“Collateral and Guarantee Requirements” means, at any time, collectively, the Domestic Collateral and Guarantee Requirement, the Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
“Collateral Documents” means the Security Agreement, the Canadian Collateral Documents, the European Collateral Documents, the Mortgages, the Deposit Account Control Agreements, the Securities Account Control Agreements, the Intellectual Property Security Agreements, the Landlord Personal Property Collateral Access Agreements, if any, and all other instruments and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to the Applicable Collateral Agent, for the benefit of the Secured Parties, a Lien on any real, personal or mixed property of such Credit Party as security for the Obligations.
“Collection Accounts” means, in the case of any European Borrower, any accounts that may be opened or maintained by a European Borrower with any bank or financial institution or any other person into which Accounts of a European Borrower are, or are to be, directly or indirectly paid or credited from time to time (and any replacement account or subdivision or subaccount of that account).
“Commodity Account” has the meaning given to such term in the UCC.
“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.
“Commodity Swap Agreement” means any commodity or fuel exchange contract, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the Parent Borrower’s and its Subsidiaries’ exposure to fluctuations in prices for commodities or fuel and not for speculative purposes.
“Company” means Diebold Nixdorf, Incorporated, an Ohio corporation.
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit C.
“Consenting Party Group” means a “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended) comprised of the Consenting Parties (as defined in the TSA); provided that no individual Consenting Party shall own, purchase or otherwise acquire, directly or indirectly, beneficial ownership of Voting Stock of the Parent Borrower resulting in such Consenting Party (together with its Affiliates), directly or indirectly beneficially owning in the aggregate Voting Stock representing more than 30% of the combined voting power of the Parent Borrower’s Voting Stock owned by the Consenting Party Group. For the avoidance of doubt, there shall be only one Consenting Party Group.
“Consolidated Capital Expenditures” means, for any period, the aggregate of all Capital Expenditures of the Parent Borrower and its Subsidiaries during such period, determined on a consolidated basis.
“Consolidated Cash Interest Expense” means, for any period, Consolidated Interest Expense for such period, excluding any amount not payable in cash.
“Consolidated Fixed Charges” means, for any period, the sum, without duplication, of the amounts determined for the Parent Borrower and its Subsidiaries on a consolidated basis equal to
(i) Consolidated Cash Interest Expense, (ii) cash prepayments (to the extent such cash prepayments are made, directly or indirectly, with proceeds of Credit Extensions under this Agreement) and regularly scheduled cash payments of principal on Total Debt (other than (i) payment of the Existing 2023 Term Loans and the Existing 2024 Notes at maturity thereof and (ii) payments made solely with the proceeds of Permitted Refinancing Indebtedness), (iii) all cash Restricted Payments made by the Parent Borrower or any Subsidiary (other than pursuant to Section 6.12(a), (c), (d), (e), (f), (h) or (k)) during such period, and
(iv) cash contributions to any Pension Plan, Foreign Plan, Multiemployer Plan or Canadian Pension Plan, all calculated for the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any period, the aggregate of all interest expense reported by the Parent Borrower and its Subsidiaries in accordance with GAAP during such period, net of any cash interest income received by the Parent Borrower and its Subsidiaries during such period from Investments. As used in this definition, the term “interest” shall include, without limitation, all interest, fees and costs payable with respect to the obligations under this Agreement (other than fees and costs which may be capitalized as transaction costs in accordance with GAAP), any discount in respect of sales of accounts receivable and/or related contract rights and the interest portion of Finance Lease Obligations during such period, all as determined in accordance with GAAP.
“Consolidated Net Income” means as of any period, the consolidated net income (or loss) of Parent Borrower and its Subsidiaries for such period determined in conformity with GAAP.
“Contingent Obligations” means at any time, (i) any indemnification or other similar contingent obligations which are not then due and owing at the time of determination or (ii) any obligations in respect of a Hedge Agreement or Cash Management Document.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, deed of hypothec, debenture, contract,
undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contribution Notice” means a contribution notice issued by the Pensions Regulator under section 38 or section 47 of the Pensions Act 2004 (UK).
“Control Account” means a Securities Account or Commodity Account that is the subject of an effective Securities Account Control Agreement and that is maintained by any Credit Party with an Approved Securities Intermediary. “Control Account” includes all Financial Assets held in a Securities Account or a Commodity Account and all certificates and instruments, if any, representing or evidencing the Financial Assets contained therein.
“Controlling Person” means, for the purposes of Section 7.17(e), any person, directly or indirectly, controlling any Italian Guarantor.
“Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
“Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit A-2.
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.
“Covered Entity” means any of the following:
(i)a “covered entity” as that term is defined in, and interpreted in accordance with, 12
C.F.R. § 252.82(b);
(ii)a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R.
§ 47.3(b); or
(iii)a “covered FSI” as that term is defined in, and interpreted in ac-cordance with, 12 C.F.R.
§ 382.2(b).
“Covered Party” has the meaning assigned to it in Section 10.27.
“Credit Date” means the date of a Credit Extension.
“Credit Document” means any of this Agreement (together with any Joinder Agreement), the Notes, if any, the Collateral Documents, the Intercreditor Agreement and each Borrowing Base Certificate (including any amendments, restatements, supplements, joinders or other modifications thereto).
“Credit Extension” means the making of a Loan or the issuing of a Letter of Credit. “Credit Party” means each Borrower and each Guarantor.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for
the purpose of hedging the foreign currency risk associated with the Parent Borrower’s and its Subsidiaries’ operations and not for speculative purposes.
“Currency Due” as defined in Section 10.3(c).
“DAC6” means the Council Directive of 25 May 2018 (2018/822/EU) amending Directive 2011/16/EU.
“Daily Simple RFR” means, for any day (an “RFR Interest Day”), an interest rate per annum equal to, for any RFR Loan denominated in (i) Pounds Sterling, SONIA for the day that is 5 RFR Business Days prior to (A) if such RFR Interest Day is an RFR Business Day, such RFR Interest Day or
(B) if such RFR Interest Day is not an RFR Business Day, the RFR Business Day immediately preceding such RFR Interest Day and (ii) Dollars, Daily Simple SOFR.
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal to SOFR for the day (such day “SOFR Determination Date”) that is five (5) RFR Business Days prior to (i) if such SOFR Rate Day is an RFR Business Day, such SOFR Rate Day or (ii) if such SOFR Rate Day is not an RFR Business Day, the RFR Business Day immediately preceding such SOFR Rate Day (provided, that for any request for a Swing Line Loan denominated in Dollars, Daily Simple SOFR shall be based on the published rate for Daily Simple SOFR as of the Business Day of such request), in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website. Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrowers.
“Debtor Relief Laws” means, collectively, the Bankruptcy Code, the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement involving a compromise of claims of any class of its creditors), the United Kingdom’s Insolvency Act 1986, the United Kingdom’s Companies Act 2006, the Insolvency Regulation and the Retained Insolvency Regulation, the German Insolvency Code (Insolvenzordnung), the German restructuring act (StaRUG) in the case of an Italian Account Debtor, the Italian Bankruptcy Law or Italian Crisis and Insolvency Code, in the case of an Account Debtor with its centre of main interests or an establishment (each as defined in the Insolvency Regulation) in the Netherlands, the Dutch Bankruptcy Act (Faillissementswet) and in the case of a Belgian Account Debtor, Book XX of the Belgian Economic Law Code (Wetboek Economisch Recht/Code de droit éeconomique), in the case of a Spanish Credit Party, the Spanish Insolvency Law, in the case of a French Credit Party, the French Insolvency Law, in the case of a Swedish Account Debtor, the Swedish Company Reorganisation Act (Sw. lag (2022:964) om företagsrekonstruktion), in case of a Swiss Borrower, the Swiss Insolvency Law, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States, Canada or other applicable jurisdictions from time to time in effect (including any applicable corporations legislation to the extent the relief sought under such corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt).
“Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“Defaulting Lender” means any Lender whose acts or failure to act, whether directly or indirectly, cause it to meet any part of the definition of “Lender Default.”
“Deposit Account” has the meaning given such term in the UCC and includes any Collection Accounts.
“Deposit Account Bank” means a financial institution at which the Credit Parties maintain a Deposit Account.
“Deposit Account Control Agreement” has the meaning specified in the Security Agreement and also includes any tri-party control agreement or other documentation entered into between an Agent (or multiple Agents, as applicable), the relevant Credit Party and the relevant account bank, necessary or desirable to perfect the Lien of the Applicable Collateral Agent over bank accounts and to effect control over the bank accounts of the relevant Credit Party (whether Deposit Accounts, Collection Accounts or otherwise) pursuant to any relevant Collateral Document.
“Designated Lender” means Bank of America, N.A.; provided if Bank of America, N.A. ceases to be a Lender, there shall be no Designated Lender.
“Dilution Factors” means, without duplication, with respect to any period, the aggregate amount of all deductions, credit memos, returns, adjustments, allowances, bad debt write offs and other non-cash credits which are recorded to reduce accounts receivable in a manner consistent with current and historical accounting practices of the Credit Parties as determined by the Administrative Agent in its Permitted Discretion.
“Dilution Ratio” means at any date, the amount (expressed as a percentage) equal to (a) the aggregate amount of the applicable Dilution Factors for the twelve (12) most recently ended fiscal months (or such shorter period as determined by the Administrative Agent in its Permitted Discretion) divided by
(b) total gross sales for the twelve (12) most recently ended fiscal months (or the applicable shorter period determined by the Administrative Agent in its Permitted Discretion).
“Dilution Reserve” means at any date, (a) the percentage amount by which the applicable Dilution Ratio exceeds 2.5% multiplied by (b) the Eligible Receivables.
“Disposition” means with respect to any property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof. The terms “Dispose” and “Disposed of” shall have correlative meanings.
“Disqualified Equity Interests” means any Equity Interest that by its terms (or by the terms of any security or other Equity Interest 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, pursuant to a sinking fund obligation or otherwise, (b) is redeemable at the option of the holder thereof, in whole or in part, (c) provides for scheduled payments of dividends in cash or (d) is or becomes convertible into or exchangeable for Indebtedness or any other Equity Interest that would constitute Disqualified Equity Interests (excluding Equity Interests which are convertible or exchangeable solely at the option of such Person (it being understood that upon such conversion or exchange it shall be an incurrence of such Indebtedness or Disqualified Equity Interests), in each case, on or prior to the 91st day following the Revolving Commitment Termination Date; provided that (i) any Equity Interests that would constitute Disqualified Equity Interests solely because the holders thereof have the right to require the Parent Borrower to repurchase such Disqualified Equity Interests upon the occurrence of a change of control or asset sale shall not constitute Disqualified Equity Interests if the terms of such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) provide that the Parent Borrower is not required to repurchase or redeem any such Equity Interests (and all securities into which they are convertible or for which they are exchangeable) pursuant to such provision unless the Obligations (other than contingent indemnification claims) are fully satisfied prior thereto or
simultaneously therewith and (ii) only the portion of the Equity Interests meeting one of the foregoing clauses (a) through (d) prior to the date that is ninety-one (91) days after the Revolving Commitment Termination Date will be deemed to be Disqualified Equity Interests. Notwithstanding the preceding sentence, (A) if such Equity Interest is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Parent Borrower or any Subsidiary, such Equity Interest shall not constitute Disqualified Equity Interests solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Equity Interest held by any future, present or former employee, director, officer, manager, member of management or consultant (or their respective Affiliates or immediate family members) of the Parent Borrower (or any Subsidiary) shall be considered Disqualified Equity Interests because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder agreement or similar agreement that may be in effect from time to time.
“Disqualified Lender” means (a) banks, financial institutions and other institutional lenders separately identified in writing by the Parent Borrower to the Administrative Agent prior to the Closing Date, (b) any competitors of the Parent Borrower or its respective Subsidiaries that were separately identified in writing by the Parent Borrower to the Administrative Agent from time to time on three (3) Business Days’ prior written notice, and (c) in the case of each of the entities covered by clauses (a) and (b), any of their Affiliates (other than bona fide debt funds) that are either (i) identified in writing by the Parent Borrower to the Administrative Agent from time to time or (ii) clearly identifiable solely on the basis of the similarity of such Affiliate’s name to an entity set forth on the Disqualified Lender list pursuant to clauses (a) and (b). In no event shall the Administrative Agent be obligated to ascertain, monitor or inquire as to whether any prospective assignee is a Disqualified Lender or have any liability with respect to any assignment made to a Disqualified Lender. There shall be no retroactive disqualification of an entity that has (i) acquired an assignment or participation interest, (ii) entered into a trade for either of the foregoing or (iii) become a competitor of the Parent Borrower or its respective Subsidiaries, in each case, before such entity is added to the Disqualified Lender list. The identity of Disqualified Lenders may be communicated by the Administrative Agent to a Lender or its proposed assignee upon request, but will not be otherwise posted or distributed to any Person. Any updates to the Disqualified Lender list shall not become effective until three (3) Business Days after receipt of such update by the Administrative Agent or the end of such lesser time period, if any, as is acceptable to the Administrative Agent.
“DND” shall have the meaning given to such term in the preamble hereto. “DNS” shall have the meaning given to such term in the preamble hereto.
“Dollar Equivalent” means, for any amount, at the time of determination thereof, (a) if such amount is expressed in Dollars, such amount, (b) if such amount is expressed in an Alternative Currency, the equivalent of such amount in Dollars determined by using the rate of exchange for the purchase of Dollars with the Alternative Currency last provided (either by publication or otherwise provided to the Administrative Agent) by Reuters on the Business Day (New York City time) immediately preceding the date of determination or if such service ceases to be available or ceases to provide a rate of exchange for the purchase of Dollars with the Alternative Currency, as provided by such other publicly available information service which provides that rate of exchange at such time in place of Reuters chosen by the Administrative Agent in its sole discretion in consultation with the Parent Borrower (or if such service ceases to be available or ceases to provide such rate of exchange, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems
appropriate in its sole discretion in consultation with the Parent Borrower) and (c) if such amount is denominated in any other currency, the equivalent of such amount in Dollars as determined by the Administrative Agent using any method of determination it deems appropriate in its sole discretion.
“Dollars” and the sign “$” mean the lawful money of the United States of America.
“Domestic Collateral and Guarantee Requirement” means, at any time and solely with respect to each US Credit Party or US Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary, the requirement that:
(a)the Administrative Agent and the Collateral Agent shall have received from (i) each US Credit Party or US Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary either (x) a counterpart of this Agreement duly executed and delivered on behalf of such Person in its capacity as a Guarantor or (y) in the case of any Person that becomes or is required to become a US Credit Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to this Agreement, in form and substance reasonably satisfactory to the Administrative Agent, duly executed and delivered on behalf of such Person in its capacity as a Guarantor, (ii) each US Credit Party or US Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary either (x) a counterpart of the Security Agreement duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a US Credit Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Security Agreement, in the form specified therein, duly executed and delivered on behalf of such Person and (iii) each US Credit Party or US Subsidiary of the Parent Borrower not constituting an Excluded Subsidiary either (x) a counterpart of the Intercreditor Agreement then in effect duly executed and delivered on behalf of such Person or (y) in the case of any Person that becomes or is required to become a US Credit Party after the Closing Date (including by ceasing to be an Excluded Subsidiary), a supplement to the Intercreditor Agreement then in effect, in the form specified therein, duly executed and delivered on behalf of such Person in each case under this clause (a) together with, in the case of any such Credit Documents executed and delivered after the Closing Date, documents and, to the extent reasonably requested by the Administrative Agent or the Collateral Agent, opinions, documents and certificates of the type referred to in Section 4.1;
(b)all outstanding Equity Interests of the Parent Borrower and the Subsidiaries (other than any Equity Interests constituting Excluded Assets) owned by or on behalf of any US Credit Party shall have been pledged pursuant to the Security Agreement and the Collateral Agent shall have received certificates or other instruments representing all such Equity Interests (if any), together with undated stock powers or other instruments of transfer with respect thereto endorsed in blank;
(c)if any Indebtedness for borrowed money of the Parent Borrower or any Subsidiary in a principal amount of $2,000,000 or more is owing by such obligor to any US Credit Party and if such Indebtedness shall be evidenced by a promissory note, such promissory note shall have been pledged pursuant to the Security Agreement and the Collateral Agent shall have received all such promissory notes, together with undated instruments of transfer with respect thereto endorsed in blank;
(d)all certificates, agreements, documents and instruments, including Uniform Commercial Code financing statements, Deposit Account Control Agreements, Securities Account Control Agreements and Intellectual Property Security Agreements, required by the Collateral Documents or requirements of Law and reasonably requested by the Administrative Agent, to be filed, delivered, registered or recorded to create the Liens intended to be created by the Collateral Documents and perfect such Liens to the extent required by, and with the priority required by, the Collateral Documents and the other provisions of the term “Domestic Collateral and Guarantee Requirement,” shall have been filed, registered or recorded or delivered to the Administrative Agent in proper form for filing, registration or recording;
(e)the Collateral Agent shall have received as soon as possible and in any event within 90 days after the Closing Date (or such later date as the Administrative Agent shall reasonably agree) (i) counterparts of a Mortgage with respect to each Mortgaged Property duly executed and delivered by the record owner of such Mortgaged Property, (ii) a policy or policies of title insurance (or marked unconditional commitment to issue such policy or policies) in the amount equal to not less than 100% (or such lesser amount as reasonably agreed to by the Collateral Agent, acting at the direction of the Administrative Agent) of the fair market value of such Mortgaged Property and fixtures, as reasonably determined by the Parent Borrower and agreed to by the Collateral Agent, acting at the direction of the Administrative Agent, issued by a nationally recognized title insurance company reasonably acceptable to the Collateral Agent, acting at the direction of the Administrative Agent, insuring the Lien of each such Mortgage as a first priority Lien on the Mortgaged Property described therein, free of any other Liens except as expressly permitted by Section 6.5, together with such endorsements (other than a creditor’s rights endorsement), coinsurance and reinsurance as the Collateral Agent, acting at the direction of the Administrative Agent, may reasonably request to the extent available in the applicable jurisdiction at commercially reasonable rates, (iii) such affidavits, instruments of indemnification (including a so-called “gap” indemnification) as are customarily requested by the title company to induce the title company to issue the title policies and endorsements contemplated above, (iv) evidence reasonably acceptable to the Collateral Agent, acting at the direction of the Administrative Agent, of payment by the Parent Borrower or any other Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above, (v) a survey of each Mortgaged Property in such form as shall be required by the title company to issue the so-called comprehensive and other survey-related endorsements and to remove the standard survey exceptions from the title policies and endorsements contemplated above (provided, however, that a survey shall not be required to the extent that the issuer of the applicable title insurance policy provides reasonable and customary survey- related coverages (including, without limitation, survey-related endorsements) in the applicable title insurance policy based on an existing survey and/or such other documentation as may be reasonably satisfactory to the title insurer), (vi) completed “Life-of-Loan” Federal Emergency Management Agency (“FEMA”) Standard Flood Hazard Determination with respect to each Mortgaged Property subject to the applicable FEMA rules and regulations (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Parent Borrower and each Credit Party relating thereto),
(vii) if any Mortgaged Property is located in an area determined by FEMA to have special flood hazards, evidence of such flood insurance as may be required under applicable law, including Regulation H of the Board of Governors and the other Flood Insurance Regulations and as required under Section 5.9, and
(viii) such legal opinions as the Administrative Agent or the Collateral Agent may reasonably request with respect to any such Mortgage or Mortgaged Property; and
(f)the Administrative Agent and the Collateral Agent shall have received each Deposit Account Control Agreement and each Securities Account Control Agreement required by, and at the times set forth in, Section 5.15.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary, (a) the foregoing provisions of this definition shall not require the creation or perfection of pledges of or security interests in, or the obtaining of title insurance, legal opinions or other deliverables with respect to, particular assets of the Credit Parties, or the provision of Guarantees by any Subsidiary (i) if, and for so long as and to the extent that the Administrative Agent and the Parent Borrower reasonably agree that the cost, burden, difficulty or consequence of creating or perfecting such pledges or security interests in such assets, or obtaining such title insurance, legal opinions or other deliverables in respect of such assets, or providing such Guarantees (taking into account any material adverse Tax consequences to the Parent Borrower and its Subsidiaries (including the imposition of material withholding or other Taxes)), outweighs the benefits to be obtained by the Lenders
therefrom and/or (ii) the grant or perfection of a security interest in such asset would (A) be prohibited by enforceable anti-assignment provisions of any applicable law, (B) violate the terms of any contract (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition) (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law) or (C) trigger termination of any contract pursuant to any “change of control” or similar provision (to the extent binding on such property at the time of the acquisition thereof and not incurred in contemplation of such acquisition); it being understood that the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause (ii) to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable law notwithstanding the relevant prohibition, violation or termination right, (b) Liens required to be granted from time to time pursuant to the term “Domestic Collateral and Guarantee Requirement” shall be subject to exceptions and limitations set forth in the Collateral Documents, (c) [reserved], (d) no perfection actions shall be required with respect to vehicles and other assets subject to certificates of title (other than the filing of UCC financing statements), (e) no perfection actions shall be required with respect to commercial tort claims with a value less than $2,000,000 and, other than the filing of UCC financing statements, no perfection shall be required with respect to promissory notes evidencing debt for borrowed money in a principal amount of less than $2,000,000, (f) except as set forth in the Foreign Credit Documents or as expressly required by the Agreed Security Principles, no actions in any non-U.S. jurisdiction or required by the laws of any non-U.S. jurisdiction shall be required to be taken to create any security interests in assets located or titled outside of the United States (including any Equity Interests of Foreign Subsidiaries and any Foreign Intellectual Property) or to perfect or make enforceable any security interests in any such assets (it being understood that except as set forth in the Foreign Credit Documents or as expressly required by the Agreed Security Principles, there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction), (g) no actions shall be required to perfect a security interest in letter of credit rights (other than the filing of UCC financing statements), (h) [reserved] and (i) in no event shall the Collateral include any Excluded Assets. The Administrative Agent may grant extensions of time for the creation and perfection of security interests in or the obtaining of title insurance, legal opinions or other deliverables with respect to particular assets or the provision of the Guaranty by any Subsidiary (including extensions beyond the Closing Date or in connection with assets acquired, or Subsidiaries formed or acquired, after the Closing Date) where it determines that such action cannot be accomplished without undue effort or expense by the time or times at which it would otherwise be required to be accomplished by this Agreement or the Collateral Documents.
Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary, subject to the terms of the Intercreditor Agreement (including any bailee provisions therein), to the extent any perfection actions are required to be taken with respect to any asset under the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing 2023 Term Loans and/or the Extended Term Loans, such perfection actions shall be required to be taken hereunder with respect to such asset.
“Dutch Borrower” as defined in the recitals hereto or any other Person added as a Dutch Borrower in accordance with the terms hereof.
“Dutch Borrowing Base” means, with respect to the Dutch Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(a)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Dutch Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(b)any applicable Reserve then in effect to the extent applicable to the Dutch Borrower or such Eligible Receivables.
“Dutch Civil Code” means the Dutch Civil Code (Burgerlijk Wetboek).
“Dutch Code of Civil Procedure” means the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering).
“Dutch Collateral Documents” means, collectively, the Dutch Security Agreement and any other agreements, instruments and documents executed in connection with this Agreement and the Agreed Security Principles that are intended to create, perfect or evidence Liens on assets of any Dutch Credit Party to secure any of the Obligations, including, without limitation, all other security agreements, pledge agreements, mortgage deeds, pledges, powers of attorney, assignments, and financing statements, in each case now or hereafter executed by any Dutch Credit Party and delivered to the Applicable Agent that are intended to create, perfect or evidence Liens on assets of any Dutch Credit Party to secure any of the Obligations.
“Dutch Credit Party” means each Dutch Borrower and Dutch Guarantor.
“Dutch Insolvency Event” means any insolvency proceedings under the Dutch Bankruptcy Act (Faillissementswet) and any filing of a declaration under article 370(3) of the Dutch Bankruptcy Act (Faillissementswet), or filing a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section 60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990).
“Dutch Guarantor” means any European Guarantor incorporated under the laws of the Netherlands.
“Dutch Outstandings” means, with respect to any Dutch Borrower at any particular time, the principal amount of the Tranche C Loans made to such Dutch Borrower outstanding at such time.
“Dutch Security Agreement” means the Dutch law governed security agreement dated on or about the date of this Agreement and made among the Dutch Credit Parties as pledgors and the European Collateral Agent as pledgee.
“Dutch Tax Deduction” means, with respect to a Loan to a Dutch Borrower, a deduction or withholding from a payment under this Agreement for and on account of any Taxes imposed by the Netherlands other than a Tax imposed under FATCA.
“Dutch Tax Qualifying Lender” means in relation to a payment made by a Dutch Borrower under a Credit Document, a Lender which is (a) entitled to receive such payments in respect of the Credit Document from the Dutch Borrower without a Dutch Tax Deduction, or (b) a Lender which is a Dutch Treaty Lender.
“Dutch Treaty Lender” means, in respect of a payment by or in respect of a Dutch Borrower under a Credit Document, a Lender which is beneficially entitled to interest payable by that Dutch Borrower in respect of an advance under a Credit Document and (a) is treated as a resident of the relevant Dutch Treaty State for the purposes of the relevant Dutch Treaty, (b) does not carry on a business in the
Netherlands through a permanent establishment with which that Lender’s participation in the Loan is effectively connected, and (c) fulfils any other conditions which must be fulfilled under the relevant Dutch Treaty in order to benefit from full exemption from Tax imposed by The Netherlands on interest subject to the completion of any necessary procedural formalities.
“Dutch Treaty State” means a jurisdiction having a double taxation agreement (a “Dutch Treaty”) in force with the Netherlands which makes provision for full exemption from Tax imposed by the Netherlands on interest.
“EBIT” means, for any period, the sum of:
(a)the Consolidated Net Income of the Parent Borrower and its Subsidiaries for such period determined in conformity with GAAP
plus, each of the following to the extent not duplicative of amounts included in determining Consolidated Net Income:
(b)Taxes based on income, profits or capital for such period, including, without limitation, state franchise and similar Taxes and foreign withholding Taxes, and Consolidated Interest Expense (without, however, giving effect to the proviso to the definition thereof), and any extraordinary or non-recurring losses and charges and any non-cash losses and non-cash charges and related tax effects in accordance with GAAP; plus
(c)[reserved]; plus
(d)(i) fees, costs and expenses incurred in connection with Acquisitions, (ii) non- recurring costs, charges and expenses relating to (x) the exercise of options and (y) stock issued by the target of an Acquisition, (iii) any fees, costs, expenses or charges related to any equity offering, Acquisition, Disposition or other Investment permitted hereunder, recapitalization or incurrence or amendments of Indebtedness permitted to be made under (or related to any refinancing hereof or amendment hereto) this Agreement (whether or not successful) and (iv) any costs or expenses incurred by the Parent Borrower or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement, any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Parent Borrower or Net Cash Proceeds of an issuance of Equity Interests of the Parent Borrower; plus
(e)any loss realized as a result of the cumulative effect of a change in accounting principles; plus
(f)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Acquisition, Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted hereunder, to the extent actually reimbursed, or, so long as the Parent Borrower has made a determination that a reasonable basis exists for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination (with a deduction in the applicable future period for any amount so added back to the extent not so indemnified or reimbursed within such 365 days); plus
(g)[reserved]; plus
(h)synergies and cost-savings of the Parent Borrower and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives (“Synergies”) and non-recurring costs, charges, accruals, reserves or expenses of the Parent Borrower and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Acquisition, any Disposition by the Parent Borrower or its Subsidiaries outside the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring initiatives enacted after the date hereof (it being understood any such increases pursuant to this clause (h) related to an Acquisition or Disposition shall only be available subject to the consummation of the Acquisition or Disposition and not in contemplation thereof), in each case, that are set forth in a certificate of a Financial Officer of the Parent Borrower and that are factually supportable (in the good faith determination of the Parent Borrower, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Parent Borrower in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Acquisition or Disposition or the decision implement such restructuring initiative (calculated on a Pro Forma Basis and net of the amount of actual benefits realized during such period from such actions to the extent already included in consolidated net income for such period); provided that the aggregate amount added back in reliance on this clause (h) in any four-fiscal quarter period shall not exceed 10% of EBITDA for such four-fiscal quarter period (calculated before giving effect to any addbacks and adjustments in this clause (h));
minus, each of the following to the extent included in determining Consolidated Net Income (without duplication):
(i)(i) the income (or loss) of any Person (other than a Subsidiary of the Parent Borrower) in which any Person other than the Parent Borrower or any of its Subsidiaries has a joint interest or a partnership interest or other ownership interest, except to the extent that any such income is actually paid to or otherwise received in cash by the Parent Borrower or any of its Subsidiaries during such period, (ii) the income (or loss) of any Person accrued prior to the date it becomes a Subsidiary of the Parent Borrower or is merged into or consolidated or amalgamated with the Parent Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Parent Borrower or any of its Subsidiaries, except as provided in the definitions of “EBIT” and “Pro Forma Basis” herein, (iii) [reserved]; (iv) gains (or losses) from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of business of the Parent Borrower and its Subsidiaries, and related tax effects in accordance with GAAP, (v) any other extraordinary or non-recurring gains or other income not from the continuing operations of the Parent Borrower or its Subsidiaries, any non-cash gains for such period, and in each case, related tax effects in accordance with GAAP and (vi) the income of any Subsidiary of the Parent Borrower (other than Subsidiaries which are not material in the aggregate as agreed upon between the Parent Borrower and the Administrative Agent) to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary; minus
(j)[reserved]; minus
(k)without duplication, the aggregate amount of cash payments made during such period in respect of any non-cash accrual, reserve or other non-cash charge or expense accounted for in a prior period which were added to Consolidated Net Income to determine EBIT for such
prior period and which do not otherwise reduce Consolidated Net Income for the current period; minus
(l)any gain realized as a result of the cumulative effect of a change in accounting principles.
For the avoidance of doubt, the foregoing shall be calculated as set forth in Section 1.2.
“EBITDA” means, for any period, the sum of (a) EBIT for such period plus (b) to the extent deducted in determining Consolidated Net Income for such period, all amounts attributable to depreciation expense and amortization expense (including amortization of intangibles, deferred financing fees and actuarial gains and losses related to pensions and other post-employment benefits, but excluding amortization of prepaid cash expenses that were paid in a prior period), in each case, determined in accordance with GAAP.
“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 clauses (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.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Eligible Assignee” means any (i) any Agent, any Lender, any Affiliate of any Agent or Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), and (ii) any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and that extends credit or buys loans in the ordinary course; provided that (x) any assignee of a Tranche B Lender shall qualify as a French Qualifying Lender and an Italian Tax Qualifying Lender, and, with respect to any Tranche B Loan made available to an Italian Borrower, it shall be an entity duly licensed to carry on lending activities in Italy pursuant to the applicable laws and regulations and (y) none of the Parent Borrower, any Affiliate of Parent Borrower, any Defaulting Lender or any natural person shall be an Eligible Assignee; provided further that no Disqualified Lender may be an Eligible Assignee.
“Eligible European Jurisdiction” means each of Austria, Belgium, Denmark, Finland, France, Germany, Greece, Italy, Ireland, Luxembourg, the European part of the Kingdom of the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland and the United Kingdom provided that the Administrative Agent may, in its sole discretion following the Closing Date, remove one or more of the countries comprising the Eligible European Jurisdictions and subsequently add one or more countries back as Eligible European Jurisdictions.
“Eligible Inventory” means, with respect to any Borrower, the inventory of such Borrower including raw materials, finished goods and service parts:
(a)that is owned solely by a Borrower free and clear from any Lien in favor of a third party (other than (v) the Liens in favor of the Applicable Collateral Agent, (w) the Junior Priority Lien in favor of the Fixed Asset Collateral Agent pursuant to any Fixed Asset Facility in accordance with the terms of the Intercreditor Agreement, (x) non-consensual unrecorded Liens arising by operation of law notified to the Administrative Agent for which a reserve has been established against the applicable Borrowing Base, (y) inchoate Liens for which amounts are not yet past due and (z) other Permitted Liens),
(b)with respect to which the Applicable Collateral Agent has a valid, perfected and enforceable First Priority Lien governed by (x) in the case of inventory of the US Borrowers and Canadian Borrowers, the laws of the jurisdiction in which the Eligible Inventory is located; (y) in the case of inventory of the German Borrowers (other than DNS) Germany; and (z) in the case of inventory of DNS, Germany and England and Wales, in each case subject only to (x) non- consensual unrecorded Liens arising by operation of law notified to the Administrative Agent for which a reserve has been established against the applicable Borrowing Base and (y) inchoate Liens for which amounts are not yet past due; provided that Inventory shall not be deemed ineligible with respect to this clause (b) solely as the result of a Permitted Priority Lien thereon, solely to the extent an applicable Priority Payable Reserve is maintained with respect to such Inventory (for the avoidance of doubt, without limiting the Administrative Agent’s ability to implement a Priority Payable Reserve for any other reason),
(c)with respect to which no representation or warranty contained in any Credit Document has been breached in any material respect,
(d)that is not, in the Administrative Agent’s Permitted Discretion, obsolete or unmerchantable, and
(e)which contains, embeds, embodies or bears any Intellectual Property licensed to such Borrower unless the Applicable Collateral Agent and, if the Applicable Collateral Agent is the European Collateral Agent, the Administrative Agent are satisfied that the Applicable Collateral Agent may sell or otherwise dispose of such inventory without (i) infringing the rights of such licensor, (ii) violating any contract with such licensor, or (iii) incurring any liability with respect to payment of royalties other than royalties incurred pursuant to sale of such inventory under the current licensing agreement;
provided that, no inventory of a Borrower shall be Eligible Inventory if such inventory consists of
(i) goods that are not held by such Borrower for bona fide resale, (ii) goods returned or rejected by customers other than goods that are undamaged or are resalable in the normal course of business,
(iii) goods to be returned to suppliers, (iv) goods that have been consigned by a Borrower, (v) goods in transit (provided that inventory located in the continental United States, Canada or Germany which is being transported by a Borrower between premises owned or operated by a Borrower or from a Borrower to a warehouse owned or leased by a Borrower, in each case within the same jurisdiction and for which a reserve has been taken for any freight costs, storage fees and/or insurance costs necessary (as reasonably determined by the Administrative Agent) to obtain possession of such inventory may be deemed “Eligible Inventory”); provided that in the case of any such inventory in transit to a warehouse leased by a Borrower, (A) the Administrative Agent has received a Landlord Personal Property Collateral Access Agreement, Bailee’s Letter or similar agreement in form and substance reasonably satisfactory to it that continues to be in effect or (B) an appropriate rent reserve has been taken in respect thereof, (vi) goods
the buyer of which has rights superior to the security interest of the Applicable Collateral Agent, (vii) inventory specifically reserved against by a Borrower, (viii) inventory (A) acquired by a Borrower pursuant to an Acquisition or other acquisition or (B) belonging to a Subsidiary formed, acquired or that ceases to be an Excluded Subsidiary after the date hereof (including, in each case, any Additional Borrower pursuant to Section 5.14), and in each case has a fair market value, taken together with all other assets to become eligible pursuant to this clause (viii) or clause (v) of the definition of “Eligible Receivables,” of more than $12,500,000, and with respect to which the Administrative Agent has not received the results of a field examination and appraisal which are reasonably satisfactory to the Administrative Agent, (ix) goods located, stored, used or held at any premises owned or operated by a Person which is not a Borrower unless (A)(1) the Administrative Agent shall have received a Landlord Personal Property Collateral Access Agreement, Bailee’s Letter or similar agreement in form and substance reasonably satisfactory to it and the Administrative Agent or (2) in the case of inventory located at a leased premises, a Reserve in an amount equal to three (3) months’ rent (or such longer period as may be required by the Administrative Agent in its Permitted Discretion) or operating expenses, as applicable, for such premises shall have been established with respect thereto and (B) an appropriate UCC-1 financing statement or equivalent shall have been executed and properly filed, (x) inventory evidenced by negotiable documents of title unless such documents of title are delivered to the Applicable Collateral Agent, (xi) inventory which is not located in the United States, Canada, Germany or England and Wales;
(xii) inventory (A) which is subject to retention of title rights in favor of the vendor or supplier thereof, including for which any contract relating to such inventory expressly includes retention of title in favor of the vendor or supplier thereof; or (B) for which any contract relating to such inventory does not address retention of title and the relevant Borrower has not demonstrated to the satisfaction of the Administrative Agent that there is no retention of title in favor of the vendor or supplier thereof; (xiii) for which reclamation rights exist or have been asserted by the seller; (xiv) inventory which is work-in-process; (xv) bill-and-hold goods; (xvi) operating supplies, packaging or shipping materials, cartons, repair parts, labels, mandrels, tooling item, miscellaneous spare parts, consumables or other such materials not considered for sale in the ordinary course of business; (xvii) goods with respect to which amounts may be claimed as an offset or that is subject to other accrued liabilities or reserves as identified by the Borrowers; (xviii) inventory at any location with less than $600,000 in inventory and (xix) with respect to any inventory, any portion of cost attributable to intercompany profit among the Borrowers and their Affiliates.
“Eligible Receivable” means the gross outstanding balance of each Account of a Borrower arising out of the sale of merchandise, goods or services in the ordinary course of business, that is made by a Borrower to a Person that is not an Affiliate of any Credit Party and that constitutes Collateral in which the Applicable Collateral Agent has a fully perfected First Priority Lien; provided, however, that an Account shall not be an “Eligible Receivable” if any of the following shall be true:
(a)(i) such Account is more than 70 days past due according to the original terms of sale, (ii) 150 days past the original invoice date thereof (in determining the aggregate amount from the same Account Debtor that is unpaid hereunder such amount shall be the gross amount due in respect of the applicable Accounts without giving effect to any net credit balances) or (iii) in respect of an Account owed by a French debtor or governed by French law, the scheduled due date is more than the maximum payment terms authorized under the French Commercial Code); or
(b)any representation or warranty contained in this Agreement or any other Credit Document with respect to such specific Account is not true and correct in all material respects; or
(c)the Account Debtor on such Account has disputed liability or made any claim with respect to any other Account due from such Account Debtor to a Borrower but only to the extent of such dispute or claim; or
(d)the Account Debtor on such Account has then currently (i) filed a petition for bankruptcy or any other relief under any applicable Debtor Relief Laws, (ii) made an assignment for the benefit of creditors, (iii) had filed against it any petition or other application for relief under any applicable Debtor Relief Laws, (iv) has failed, suspended business operations, become insolvent, called a meeting of its creditors for the purpose of obtaining any financial concession or accommodation or (v) had or suffered a receiver, interim receiver, monitor, examiner, administrator, (preliminary) insolvency administrator (((vorläufiger) Insolvenzverwalter), restructuring official (herstructureringsdeskundige), observer (observator), administrator (bewindvoerder), any insolventiefunctionaris/praticien de l’insolvabilité, curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, mandataris ad hoc/mandataire ad hoc and ondernemingsbemiddelaar/médiateur d'entreprise, as applicable or a trustee to be appointed for all or a significant portion of its assets or affairs, unless such Account Debtor (A) is a debtor-in-possession in a case then pending under Chapter 11 of the Bankruptcy Code or any similar or equivalent provision of any Debtor Relief Laws, (B) has established debtor-in-possession financing satisfactory to the Administrative Agent in its sole discretion and
(C) otherwise satisfies each of the requirements set forth in this definition of Eligible Receivables; or
(e)the Account Debtor on such Account or any of its Affiliates is also a supplier to or creditor of a Borrower, to the extent of the applicable offset unless such Account Debtor has executed a no-offset letter reasonably satisfactory to the Administrative Agent, in its discretion exercised in a commercially reasonable manner; or
(f)the sale represented by such Account is to an Account Debtor located outside of
(i) in the case of an Account of a US Borrower or Canadian Borrower, the United States or Canada or (ii) in the case of an Account of any European Borrower, any Eligible European Jurisdiction, unless the sale is on letter of credit or acceptance terms acceptable to the Administrative Agent, in its Permitted Discretion and (a) such letter of credit names the Applicable Collateral Agent as beneficiary for the benefit of the Secured Parties or (b) the issuer of such letter of credit has consented to the assignment of the proceeds thereof to the Applicable Collateral Agent; or
(g)the sale to such Account Debtor on such Account is on a bill-on-hold, guaranteed sale, sale-and-return, sale-on-approval, sale on consignment or sale providing for repurchase or return basis; or
(h)such Account is subject to a Lien in favor of any Person other than (i) the First Priority Lien in favor of the Applicable Collateral Agent for the benefit of the Secured Parties, (ii) the Junior Priority Lien in favor of the Fixed Asset Collateral Agent pursuant to the Fixed Asset Facility in accordance with the terms of the Intercreditor Agreement, (iii) non-consensual Liens arising by operation of law which are junior to the Applicable Collateral Agent’s Lien, (iv) inchoate Liens for which amounts are not past due and (v) other Permitted Liens; or
(i)such Account is subject to any deduction, offset, counterclaim, discount, allowance, rebate, credit, return privilege, exchange rate adjustment, other adjustments, or other conditions other than volume sales discounts given in the ordinary course of the business of the applicable Borrower; provided, however, that such Account shall be ineligible pursuant to this
clause (i) only to the extent of such deduction, offset, counterclaim, discount, allowance, rebate, credit, return privilege, exchange rate adjustment, other adjustment, or other condition; or
(j)the Account Debtor on such Account is located in New Jersey, Minnesota or any other state of the United States requiring the holder of such Account, as a precondition to commencing or maintaining any action in the courts of such state or other jurisdiction either to (i) receive a certificate of authorization to do business in such state or be in good standing in such state or (ii) file a notice of business activities report, or equivalent, with the appropriate office or agency of such state, in each case unless and for so long as the applicable Borrower has filed within the Qualification Period (and maintains the effectiveness of) such a certificate of authority to do business and is in good standing or, as the case may be, has duly filed within the Qualification Period (and maintains the effectiveness of) such a notice in such state; or
(k)the Account Debtor on such Account is a Governmental Authority, unless, in the case of an Account Debtor which is a Governmental Authority of the United States, the applicable Borrower has assigned its rights to payment of such Account to the Applicable Collateral Agent pursuant to the Assignment of Claims Act of 1940, as amended, in the case of a
U.S. federal Governmental Authority only, and pursuant to applicable law, if any, in the case of any other Governmental Authority in the United States of America only, and such assignment has been accepted and acknowledged by the appropriate government officers; or
(l)50% or more of the outstanding Accounts of the Account Debtor have become, in accordance with the provisions of clause (a) above, ineligible; or
(m)the sale represented by such Account is denominated in a currency other than
(i) in the case of any US Borrower, Dollars, (ii) in the case of any Canadian Borrower, Dollars and Canadian Dollars and (iii) in the case of any European Borrower, Dollars, Euros, Pounds Sterling, Swedish Krona and Polish Zloty; or
(n)the Account Debtor is in default on prior indebtedness to the applicable Borrower (other than invoices that are not ineligible pursuant to clause (a) above) or which has been written off the books of the Borrowers or otherwise designated as uncollectible; or
(o)the applicable Borrower, in order to be entitled to collect such Account, is required to perform any additional service for, or perform or incur any additional obligation to, the Person to whom or to which it was made; or
(p)such Account is owing by an Account Debtor to the extent the total Accounts of such Account Debtor to the applicable Borrower represent more than 15% of the Eligible Receivables at such time, solely to the extent of such excess; or
(q)such Account is not legally enforceable; or
(r)such Account is unlawful or not absolute; or
(s)such Account is not in material compliance with all applicable material laws and regulations; or
(t)such Account did not arise from a final sale of goods or services (evidenced by an invoice or other writing in form acceptable to the Administrative Agent, in its Permitted Discretion) which have been fully delivered; it being understood and agreed that each Borrower’s
form of invoice which has been delivered to the Administrative Agent prior to the Closing Date is acceptable; or
(u)payment in cash has been received with respect to, but not yet applied to, such Account, but only to the extent of such non-application; or
(v)Accounts (A) acquired by a Borrower pursuant to an Acquisition or other acquisition in respect of which the consideration, if any, has been paid in full or (B) belonging to a Subsidiary formed, acquired or that ceases to be an Excluded Subsidiary after the date hereof (including, in each case, any Additional Borrower pursuant to Section 5.14), and in each case has a fair market value, taken together with all other assets to become eligible pursuant to this clause
(v) or clause (viii) of the definition of “Eligible Inventory,” of more than $12,500,000, and with respect to which the Administrative Agent has not received the results of a field examination and appraisal which are reasonably satisfactory to the Administrative Agent (provided that no such accounts may be Eligible Receivables if the applicable consideration paid in such Acquisition or acquisition has not been paid in full); or
(w)such Account is evidenced by chattel paper or a promissory note or an instrument of any kind; or
(x)any Account which was partially paid and in respect of which the applicable Borrower created a new receivable for the unpaid portion of such Account; or
(y)such Account is governed by the laws of any jurisdiction other than (i) in the case of an Account of a US Borrower or Canadian Borrower, the United States or Canada or (ii) in the case of an Account of any European Borrower, any jurisdiction in which a European Borrower is incorporated; or
(z)any Account which, for any Account Debtor, exceeds the applicable credit limit for such Account Debtor, if any, determined by the Borrowers, to the extent of such excess; or
(aa) such Account is subject to any limitation of assignment (which would have the effect of preventing or restricting the creation of security interests) or limitation on the creation of security interests (whether arising by operation of law, by agreement or otherwise), unless the Administrative Agent has determined that such limitation is not enforceable; or
(bb) with respect to an Account owed by a French Account Debtor or governed by French law, (A) any Account that is owed by an Account Debtor which is a consumer (consommateur) within the meaning of the French Consumer Code, (B) any Account that is not a professional receivable (créance professionnelle) within the meaning of the French Monetary and Financial Code or (C) any Account that is an Account evidenced by any promissory note, bill of exchange (including lettre de change or billet à ordre), chattel paper or instrument (unless endorsed in favor of the European Administrative Agent); or
(cc) such Account is subject to any netting or similar arrangements with the respective Account Debtor, including with respect to German law governed Accounts a current account arrangement (Kontokorrentabrede); or
(dd) such Account is owed by an Account Debtor who is a consumer within applicable consumer protection legislation, including, in the case of an Account owed to a UK Borrower, any Account which arises under a commercial agreement made with a private
individual or regulated by the UK Consumer Credit Act 1974, and in the case of an Account owed to an Italian Borrower, by an Account Debtor which is an individual (persona fisica); or
(ee) with respect to an Account owed by a Belgian Account Debtor, such Account arose from an intuitu personae sale or service agreement; or
(ff) with respect to an Account owed by a Belgian Account Debtor, such Account arose from public procurement agreements; or
(gg) such Account relates to inventory that is recorded as perpetual inventory or that is inventory in transit that may be deemed “Eligible Inventory” in accordance with clause (v) of the definition of “Eligible Inventory”; or
(hh) such Account represents amounts that may not be collectible from the customer as determined by accrued liability or deferred revenue balances recorded by the borrower with respect to such customers in the Permitted Discretion of the Administrative Agent; or
(ii)such Account was created on cash on delivery or cash in advance terms; or
(jj) such Account with respect to which the scheduled due date is more than 60 days after the date of the original invoice therefor or which has no stated due date.
“Entitlement Holder” has the meaning given such term in the UCC. “Entitlement Order” has the meaning given such term in the UCC.
“Environment” means the indoor and outdoor environment, including ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata and natural resources such as wetlands, flora and fauna.
“Environmental Claim” means any Adverse Proceeding, investigation, notice, notice of violation or of potential responsibility, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising
(i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the Environment.
“Environmental Laws” means any and all current or future federal, state, provincial, territorial, local and foreign statutes, laws, including common law, regulations or ordinances, rules, judgments, orders, decrees, permits licenses or restrictions imposed by a Governmental Authority, and any and all other Laws, relating to pollution or protection of the Environment or protection of human health (to the extent relating to exposure to Hazardous Materials), including those relating to the generation, use, handling, storage, transportation, treatment or Release or threat of Release of Hazardous Materials.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of remediation, fines, penalties or indemnities), of the Parent Borrower, any other Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (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, agreement or other binding consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto, and the rules and regulations promulgated thereunder.
“ERISA Affiliate” means (i) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which any Credit Party is a member; (ii) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which any Credit Party is a member; and (iii) for purposes of provisions relating to Section 412 of the Internal Revenue Code or Section 302 of ERISA, any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which any Credit Party is a member.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any Credit Party any ERISA Affiliate 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 determination that any Pension Plan is, or is expected to be, in “at-risk” status (within the meaning of Section 430 of the Code or Section 303 of ERISA); (d) a complete or partial withdrawal by any Credit Party or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is, or is expected to be, insolvent (within the meaning of Title IV of ERISA) or in “endangered” or “critical” status (within the meaning of Section 432 of the Internal Revenue Code or Section 305 of ERISA); (e) the filing of a notice of intent to terminate, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (f) an event or condition which constitutes grounds under Section 4041A or 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (g) the failure by any Credit Party or any ERISA Affiliate to satisfy the minimum funding standards of Sections 412, 430, 431 or 432 of the Internal Revenue Code or Sections 302, 303, 304 or 305 of ERISA with respect to a Pension Plan or Multiemployer Plan, whether or not waived; (h) the filing pursuant to Section 412(c) of the Code or Section 302(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Pension Plan; (i) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums, upon any Credit Party or any ERISA Affiliate; or (j) a Canadian Pension Event.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.
“EURIBOR Rate” means, with respect to any Term Benchmark Borrowing denominated in Euros and for any Interest Period, the EURIBOR Screen Rate, two TARGET Days prior to the commencement of such Interest Period.
“EURIBOR Screen Rate” means the euro interbank offered rate administered by the European Money Markets Institute (or any other person which takes over the administration of that rate) for the relevant period displayed (before any correction, recalculation or republication by the administrator) on page EURIBOR01 of the Thomson Reuters screen (or any replacement Thomson Reuters page which displays that rate) or on the appropriate page of such other information service which publishes that rate from time to time in place of Thomson Reuters as published at approximately 11:00 a.m. Brussels time two TARGET Days prior to the commencement of such Interest Period. If such page or service ceases to
be available, the Administrative Agent may specify another page or service displaying the relevant rate after consultation with the Borrower.
“Euro” or “€” refers to the single currency of the Participating Member States.
“European Borrowers” as defined in the preamble hereto together with any other Person added as a European Borrower in accordance with the terms hereof.
“European Borrowing Base” means the sum of (i) the French Borrowing Base plus (ii) each German Borrowing Base plus (iii) the Spanish Borrowing Base plus (iv) the Italian Borrowing Base plus
(v) the Belgian Borrowing Base plus (vi) Swedish Borrowing Base plus (vii) the Polish Borrowing Base plus (viii) Dutch Borrowing Base plus (ix) the UK Borrowing Base; provided that, notwithstanding the foregoing, in no event shall the European Borrowing Base exceed 50% of the Global Borrowing Base.
“European Collateral Agent” as defined in the preamble hereto and includes, for the avoidance of doubt, any designated branch or Affiliate of GLAS Americas LLC designated by it to serve in such capacity for purposes of any European Collateral Documents or Collateral thereunder.
“European Collateral Document” means each Collateral Document not governed by the laws of the United States or Canada or any state, territory or province thereof, including without limitation the Dutch Collateral Documents, the French Collateral Documents, the German Collateral Documents, the UK Collateral Documents, the Italian Collateral Documents, the Spanish Collateral Documents, the Belgian Collateral Documents, the Polish Collateral Documents and the Swedish Collateral Documents.
“European Credit Party” means each Credit Party other than a US Credit Party and a Canadian Credit Party.
“European Guarantor” means each Guarantor that is a Foreign Subsidiary (other than any Canadian Credit Party and the Swiss Borrower).
“European Limitations” has the meaning set forth in Section 2.13(c).
“European Obligations” means all obligations of every nature of each European Credit Party under the Credit Documents together with all obligations from time to time owed to the Agents (including former Agents), the Lenders or any of them and Approved Counterparties or any of them, under any Cash Management Document, Hedge Agreement or Bi-lateral LC/WC Agreement, in each case whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any European Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise (including any Parallel Debt).
“Event of Default” means each of the conditions or events set forth in Section 8.1.
“Excess Availability” means, at any time, (a) the Line Cap minus (b) the aggregate of all Revolving Credit Outstandings.
“Excess Stub Notes” means the principal amount of the Existing 2024 Notes (if any) that, after the 2024 Consent Solicitation and Exchange Offer and Registered Exchange Offer have been consummated, have not been exchanged for New 2L Notes and Warrants pursuant to the 2024 Consent Solicitation and Exchange Offer or Registered Exchange Offer in excess of $20,000,000.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“Exchange Rate” has the meaning assigned to such term in the Superpriority Term Loan Agreement.
“Excluded Account” as defined in Section 5.15(a).
“Excluded Assets” means (i) any fee-owned real property located outside the United States having a fair market value equal to or less than $10,000,000, (ii) any fee-owned real property located in the United States having a fair market value equal to or less than $10,000,000, (iii) leasehold interests (it being understood that there shall be no requirement to obtain leasehold mortgages/deeds of trusts), (iv) those assets over which the granting of security interests in such assets would be prohibited by applicable law or regulation (in each case, after giving effect to the applicable anti-assignment provisions of the UCC, the PPSA or other applicable law), or to the extent that such security interests would result in material adverse tax consequences to the Parent Borrower and its Subsidiaries, taken as a whole, as reasonably determined in good faith by the Parent Borrower, (v) those assets as to which the Administrative Agent and the Parent Borrower reasonably determine that the costs of obtaining a security interest in such assets or perfection thereof, including, without limitation, the cost of title insurance, surveys or flood insurance (if necessary) are excessive in relation to the benefit to the Lenders of the security to be afforded thereby, (vi) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, (vii) to the extent requiring the consent of one or more third parties or prohibited by (including by triggering a change of control provision or, repurchase obligation under) the terms of any applicable organizational documents, joint venture agreement or shareholders’ agreement (in each case after taking commercially reasonable efforts to obtain such consent or have such prohibition waived to the extent such actions are reasonably requested by the Administrative Agent), equity interests in any person other than Wholly Owned Subsidiaries, (viii) margin stock, (ix) letter of credit rights, chattel paper, promissory notes (other than intercompany notes (it being understood and agreed that the Parent Borrower and its Subsidiaries may deliver a global intercompany note and allonge in lieu of taking any creation, perfection, priority or other actions with respect to any individual intercompany notes)) and commercial tort claims below $2,000,000 (except to the extent perfection can be achieved by the filing of a UCC or PPSA financing statement), (x) any governmental licenses or state, provincial, territorial or local franchises, charters and authorizations to the extent security interest is prohibited thereby (after giving effect to the applicable anti-assignment provisions of the UCC or PPSA and excluding the proceeds and receivables thereof), (xi) any lease, license or other agreement or any property subject to a purchase money security interest, capital lease obligation or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money, capital lease or similar arrangement or create a right of termination in favor of any other party thereto (other than the Parent Borrower or a Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or PPSA), other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or PPSA notwithstanding such prohibition, but in each case subject to the terms of the Collateral and Guarantee Requirements (other than to the extent no additional action needs to be taken with respect to any such assets to create or perfect a security interest in any such assets), (xii) the Specified Intercompany Claims and (xiii) any property excluded pursuant to the Agreed Security Principles. Notwithstanding the foregoing provisions of this definition or anything in this Agreement or any other Credit Document to the contrary, (x) any asset (other than the Paderborn Property) that does not constitute “Excluded Property” or “Excluded Assets”, as applicable, under and as defined in the 2025 Notes, New 2L Notes, Superpriority Term Loan Agreement, Existing Credit Agreement and/or the Extended Term Loan Agreement (or, in each case, the other definitive documentation related thereto) shall not constitute
an “Excluded Asset” for purposes of this Agreement and the other Credit Documents and (y) in no event shall any asset be excluded from any floating charge under any UK Collateral Document.
“Excluded Subsidiary” means (i) any Foreign Subsidiary (other than a Specified Foreign Subsidiary), (ii) any US Subsidiary of a Foreign Subsidiary (other than a Specified Foreign Subsidiary),
(iii)any US Subsidiary substantially all of the assets of which are Capital Stock or Indebtedness of Excluded Subsidiaries under clause (i), (iv) any other Subsidiary excused from becoming a Credit Party pursuant to clause (a) of the second to last paragraph of the definition of the term “Domestic Collateral and Guarantee Requirement” or of the term “Canadian Collateral and Guarantee Requirement” or the terms of the Agreed Security Principles (v) any non-Wholly Owned Subsidiary to the extent the provision of a guarantee or granting of a Lien thereby is restricted or prohibited pursuant to applicable local law or contractual requirements and (vi) Immaterial Subsidiaries.
“Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, and only for so long as, the guarantee by such Credit Party of, or the grant by such Credit Party of a security interest to secure, as applicable, such Swap Obligation (or any guarantee thereof) is or becomes illegal 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 Credit Party’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 Credit Party or the grant by any Credit Party of a security interest, as applicable, becomes effective with respect to such related Swap Obligation. 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.
“Excluded Taxes” means, with respect to any Agent, any Lender (including each Swing Line Lender and Issuing Bank) or any other recipient of any payment to be made by or on account of any obligation of any Credit Party hereunder or under any other Credit Document, (a) any tax on such recipient’s net income or profits (or franchise and similar tax in lieu of such tax on net income or profits) imposed by a jurisdiction (i) as a result of such recipient being organized or having its principal office or applicable lending office located in such jurisdiction or (ii) as a result of any other present or former connection between such recipient and the jurisdiction (including as a result of such recipient carrying on a trade or business, having a permanent establishment or being a resident for tax purposes in such jurisdiction, other than a connection arising solely from such recipient having executed, delivered, enforced, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, any Credit Documents); (b) any branch profits tax under Section 884(a) of the Internal Revenue Code or any similar tax imposed by any other jurisdiction described in (a); (c) with respect to any Loan or Letter of Credit made to a US Borrower by a Non-US Lender (other than any Non-US Lender becoming a party hereto pursuant to a Borrower’s request under Section 2.22), any U.S. federal withholding tax that is imposed on amounts payable to such Non-US Lender pursuant to a Law in effect at the time such Non-US Lender becomes a party hereto (or designates a new lending office) (or where the Non-US Lender is a partnership for U.S. federal income tax purposes, pursuant to a law in effect on the later of the date on which such Non-US Lender becomes a party hereto or the date on which the affected partner becomes a partner of such Non-US Lender), except to the extent that such Non-US Lender (or its assignor, if any) was entitled, immediately prior to the time of designation of a new lending office (or assignment), to receive additional amounts from a Credit Party with respect to such U.S. federal withholding tax pursuant to Section 2.19;
(d) any withholding tax attributable to a Lender’s failure to comply with Section 2.19(k); (e) any U.S. federal withholding tax imposed under FATCA; (f) except in the case of a Tranche A Lender that becomes a Tranche B Lender pursuant to Section 8.5, any French withholding tax that is imposed on interest or fees payable by a French Borrower or a French Guarantor, except to the extent that (i) such
withholding tax arises because of a change in Laws after the date such Lender became a Lender (it being specified however that, any amendment to the lists referred to in the definition of the Non-Cooperative Jurisdiction shall not be treated as a change in Law) or (ii) such Lender’s assignor (if any) was entitled, immediately prior to the assignment to such Lender, to receive additional amounts from a Credit Party with respect to such French withholding tax pursuant to Section 2.19; (g) except in the case of a Tranche A Lender that becomes a Tranche B Lender pursuant to Section 8.5, any Taxes imposed by Germany on a payment made by a German Borrower to a Lender, if on the date on which the payment falls due (i) the payment could have been made without a German Tax Deduction if the Lender had been a German Tax Qualifying Lender, but on that date that Lender is not or has ceased to be a German Tax 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 German Treaty or any published practice or published concession of any relevant taxing authority or (ii) the relevant Lender is a German Treaty Lender and the German Borrower is able to demonstrate that the payment could have been made to the Lender without the German Tax Deduction had that Lender complied with its obligations under Section 2.19(k) (h) except in the case of a Tranche A Lender that becomes a Tranche B Lender pursuant to Section 8.5, any Swedish withholding tax that is imposed on interest (including any fees treated as interest for Swedish income tax purposes) payable by a Swedish Borrower, except to the extent that (i) such withholding tax arises because of a change in Laws after the date such Lender became a Lender or
(ii) such Lender’s assignor (if any) was entitled, immediately prior to the assignment to such Lender, to receive additional amounts from a Credit Party with respect to such Swedish withholding tax pursuant to Section 2.19; (i) Canadian federal withholding Taxes imposed on amounts payable by a Canadian Borrower to a recipient solely as a result of: (i) such recipient not dealing at arm’s length (within the meaning of the Tax Act) with a Canadian Borrower at the time of such payment, or (ii) such recipient being a “specified non-resident shareholder” (as defined in subsection 18(5) of the Tax Act) of a Canadian Borrower or a non-resident person not dealing at arm’s length with a “specified shareholder” (as defined in subsection 18(5) of the Tax Act) of a Canadian Borrower, other than, in the case of (i) and (ii), where the recipient is not dealing at arm’s length with the applicable Canadian Borrower, or the recipient is a “specified non-resident shareholder” of the applicable Canadian Borrower or does not deal at arm’s length with a “specified shareholder” of the applicable Canadian Borrower, as applicable, solely in connection with or as a result of the recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in any other transaction pursuant to or enforced any Credit Document; (j) solely with respect to any Loan to a UK Borrower, any UK Tax Deduction 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 the Lender had been a UK Tax Qualifying Lender, but on that date that Lender is not or has ceased to be a UK Tax Qualifying Lender, except to the extent that (x) such UK Tax Deduction arises 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 UK Treaty or any published practice or published concession of any relevant taxing authority or
(y) such Lender’s assignor (if any) was entitled, immediately prior to the assignment to such Lender, to receive additional amounts from a Credit Party with respect to such UK Tax Deduction pursuant to Section 2.19; or (ii) the relevant Lender is a UK Tax Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Tax Qualifying Lender; and: (A) an officer of H.M. Revenue & Customs has given (and not revoked) a direction (a “Direction”) under section 931 of the UK ITA which relates to the payment and that Lender has received from any UK Borrower or any Guarantor making the payment a certified copy of that Direction; and (B) the payment could have been made to the Lender without any UK Tax Deduction if that Direction had not been made; or (iii) the relevant Lender is a UK Tax Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Tax Qualifying Lender and: (A) the relevant Lender has not given a UK Tax Confirmation to the relevant UK Borrower; and (B) the payment could have been made to the Lender without any UK Tax Deduction if the Lender had given such a UK Tax Confirmation, on the basis that the UK Tax Confirmation would have enabled any UK Borrower or any Guarantor making the payment to have formed a reasonable belief that the payment was an “excepted
payment” for the purpose of section 930 of the UK ITA; or (iv) the relevant Lender is a UK Treaty Lender and any UK Borrower or any Guarantor making the payment is able to demonstrate that the payment could have been made to the Lender without the UK Tax Deduction had that Lender complied with its obligations under Section 2.19(k)(4); (k) except in the case of a Tranche A Lender that become a Tranche B Lender pursuant to Section 8.5, any Spanish withholding tax that it is imposed on interest payable by a Spanish Borrower to a Lender, except to the extent that (i) such withholding tax arises in relation to a Spanish Tax Qualifying Lender because of a change in Laws after the date such Spanish Tax Qualifying Lender became a Lender or (ii) such Lender’s assignor (if any) was entitled, immediately prior to the assignment to such Lender, to receive additional amounts from a Credit Party with respect to such Spanish withholding tax pursuant to Section 2.19; (l) except in the case of a Tranche A Lender that becomes a Tranche B Lender pursuant to Section 8.5, in the case of a Belgian Borrower, any withholding tax on interest that is imposed by Belgium as a result of the fact that the relevant Lender has ceased to be a Belgian Tax Qualifying Lender, except to the extent that (i) such withholding tax arises because of a change in (or in the interpretation, administration, or application of) Laws after the date such Lender became a Lender under this Agreement or (ii) such Lender’s assignor (if any) was entitled, immediately prior to the assignment to such Lender, to receive additional amounts from a Credit Party with respect to such Belgian withholding tax pursuant to Section 2.19; (m) except in the case of a Tranche A Lender that becomes a Tranche B Lender pursuant to Section 8.5, in the case of an Italian Borrower, any withholding tax on interest and/or fees or commission related to a Letter of Credit that is imposed by Italy as a result of the fact that the relevant Lender has ceased to be a Italian Tax Qualifying Lender, except to the extent that such withholding tax arises because of a change in (or in the interpretation, administration, or application of) Laws after the date such Lender became a Lender under this Agreement; (n) solely with respect to any Loan to a Dutch Borrower, any Dutch Tax Deduction if, on the date on which the payment falls due, the payment could have been made to the relevant Lender without a Dutch Tax Deduction if the Lender had been a Dutch Tax Qualifying Lender, but on that date that Lender is not or has ceased to be a Dutch Tax Qualifying Lender, except to the extent that (x) such Dutch Tax Deduction arises 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 Dutch Treaty or any published practice or published concession of any relevant taxing authority or (y) such Lender’s assignor (if any) was entitled, immediately prior to the assignment to such Lender, to receive additional amounts from a Credit Party with respect to such Dutch Tax Deduction pursuant to Section 2.19; (o) [Reserved]; (p) any Tax levied under the laws of the Netherlands to the extent such Tax becomes payable as a result of any Lender or Agent having a substantial interest (aanmerkelijk belang) in any Dutch Borrower as laid down in the Dutch Income Tax Act 2001 (Wet inkomstenbelasting 2001); (q) any tax that arises due to the fact that the Loan is secured (directly or indirectly) by real estate located in Germany (inländische Grundstücke) or domestic rights treated as real property under German civil law (inländische Rechte, die den Vorschriften über Grundstücke unterliegen) within the meaning of section 49 para. 1 no. 5 lit. c) aa) Income Tax Act (Einkommensteuergesetz) (including withholding taxes within the meaning of section 50a para. 7 Income Tax Act (Einkommensteuergesetz)); and (r) any interest, additions to taxes and penalties with respect to any taxes described in clauses (a) through (r) of this definition.
“Existing 2023 Term Loans” means the Term B Loans under and as defined in the Existing Credit Agreement having a maturity date of November 6, 2023.
“Existing 2024 Notes” means the notes pursuant to the Existing 2024 Indenture.
“Existing 2024 Indenture” means that certain Senior Notes Indenture, dated as of April 19, 2016, by and among Parent Borrower, U.S. Bank Trust Company, National Association, as the trustee, and Parent Borrower’s subsidiary guarantors party thereto, as amended, restated, amended and restated, supplemented or otherwise modified.
“Existing 2025 Notes” means the notes pursuant to the Existing 2025 Indentures.
“Existing 2025 Indentures” means, collectively, (i) that certain Senior Secured Notes Indenture, dated as of July 20, 2020, by and among the Parent Borrower, U.S. Bank Trust Company, National Association, as the trustee, and Parent Borrower’s subsidiary guarantors party thereto and (ii) that certain Senior Secured Notes Indenture, dated as of July 20, 2020, by and among Diebold Nixdorf Dutch Holding B.V., Parent Borrower, U.S. Bank Trust Company, National Association, as the trustee, and Parent Borrower’s subsidiary guarantors party thereto, in each case as amended, restated, amended and restated, supplemented or otherwise modified.
“Existing Credit Agreement” means that certain Credit Agreement, dated as of November 23, 2015, by and among inter alia the Parent Borrower, the subsidiaries of the Parent Borrower from time to time party thereto, the lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent as amended, restated, amended and restated or otherwise modified.
“Existing Letters of Credit” as defined in Section 2.3(k).
“Existing Revolving Credit Facility” means the senior secured revolving credit facility provided under the Existing Credit Agreement.
“Extended Term Loan Agreement” means that certain credit agreement, dated as of the Closing Date, among the Parent Borrower, the Guarantors parties thereto, the JPMorgan Chase Bank, N.A., in its capacity as the administrative agent (or any successor representative acting in such capacity), GLAS Americas LLC, in its capacity as the collateral agent (or any successor representative acting in such capacity), and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time.
“Extended Term Loan Paydown” means the repayment of the Extended Term Loans from the proceeds of the Superpriority Term Loans Extended Term Loans on a pro rata basis (i) on the Closing Date, at par in an amount equal to 15% of the principal amount of Existing 2023 Term Loans that participate in the Term Loan Exchange, (ii) on December 31, 2023, at par in an amount equal to 5% of the principal amount (at the time of the Term Loan Exchange) of Existing 2023 Term Loans that participated in the Term Loan Exchange, subject in the case of clause (ii) to pro forma liquidity (tested on a trailing
10-day average and based on global cash or Cash Equivalents, of the Parent Borrower and its Subsidiaries and unused availability under this Agreement, but without deduction for any amounts used to pay, prepay, repay, satisfy, purchase, exchange, redeem, retire, acquire, defease, cancel or terminate the Excess Stub Notes (including any payment of interest, fees or principal on account of such Excess Stub Notes) on December 31, 2023 in excess of $250,000,000 (the “Liquidity Condition”) and (iii) solely in the event the repayment in clause (ii) is not made as a result of the Liquidity Condition not being satisfied, on December 31, 2024, at par in an amount equal to 5% of the principal amount (at the time of the Term Loan Exchange) of Existing 2023 Term Loans that participated in the Term Loan Exchange, subject to the Liquidity Condition (tested on a trailing 10-day average and based on global cash or Cash Equivalents of the Parent Borrower and its Subsidiaries, and unused availability under this Agreement, but without deduction for any amounts used to pay, prepay, repay, satisfy, purchase, exchange, redeem, retire, acquire, defease, cancel or terminate the Excess Stub Notes (including any payment of interest, fees or principal on account of such Excess Stub Notes) measured on a pro forma basis on December 31, 2024.
“Extended Term Loans” means the loans made to the Parent Borrower pursuant to the Extended Term Loan Agreement.
“Extended Termination Date” as defined in Section 2.23.
“Extending Lender” as defined in Section 2.23.
“External Subsidiary” means a Subsidiary of the Parent Borrower which is not a Credit Party.
“Facility Cash Management Obligation” means any costs incurred or other payments required to be made by any Agent pursuant to any Deposit Account Control Agreement or Securities Account Control Agreement or similar obligations.
“FATCA” means Sections 1471 through 1474 of the Internal Revenue 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, any agreement entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code, any intergovernmental agreements entered into in connection with the foregoing and any treaty, law or regulation of any other jurisdiction, or relating to an intergovernmental agreement between the United States and any other jurisdiction, which (in either case) facilitates the implementation of any law or regulation referred to above.
“Federal Funds Effective Rate” means, for any day, the rate calculated by the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as shall be set forth on the NYFRB’s Website from time to time) and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate, provided that, if the Federal Funds Effective Rate as so determined would be less than the Floor, such rate shall be deemed to be the Floor for the purposes of this Agreement.
“Federal Reserve Board” means the Board of Governors of the Federal Reserve System of the United States of America.
“Finance Lease Obligations” of a Person means the amount of the obligations of such Person to pay rent or other amounts under any lease of (or other similar arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are, in conformity with GAAP, accounted for as a finance lease (rather than an operating lease) on the balance sheet of that Person, and, for purposes hereof and subject to Section 1.2, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP.
“Financial Asset” has the meaning given to such term in the UCC.
“Financial Officer” means, with respect to any Borrower, its chief financial officer, director of treasury services, treasurer, assistant treasurer, or any position similar to any of the foregoing (and in the case of a European Credit Party, also means each person performing similar duties as the foregoing persons (including any director of a European Credit Party acting in such capacity).
“Financial Support Direction” means a financial support direction issued by the Pensions Regulator under section 43 of the Pensions Act 2004 (UK).
“First Priority” means, with respect to any Lien purported to be created in any ABL Collateral of a Credit Party pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Permitted Lien which is junior in priority to the Applicable Collateral Agent’s Lien on such Collateral and inchoate Liens arising by operation of law for which amounts are not yet past due; provided that a Lien shall not be deemed to not constitute a First Priority Lien solely as the result of the existence of a Permitted Priority Lien on such Collateral, solely to the extent an applicable Priority Payable Reserve is maintained with respect to such applicable asset (for the avoidance of doubt,
without limiting the Administrative Agent’s ability to implement a Priority Payable Reserve for any other reason).
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means with respect to the Parent Borrower, the fiscal year ending on December 31 of each calendar year.
“Fixed Asset Collateral” means the “Notes Priority Collateral” as defined in the Intercreditor Agreement.
“Fixed Asset Facility” means (i) the credit facilities under the Existing Credit Agreement, the Extended Term Loans, the Superpriority Term Loans, the Existing 2025 Notes and the New 2L Notes, in each case as amended, restated, supplemented, waived, replaced (whether or not upon termination, and whether with the original lenders or otherwise), restructured, repaid, refunded, refinanced or otherwise modified from time to time, including any agreement or indenture extending the maturity thereof, refinancing, replacing or otherwise restructuring all or any portion of the Indebtedness under such facility or agreements or indenture or indentures or any successor or replacement facility or indenture or indentures or increasing the amount loaned or issued thereunder or altering the maturity thereof, and (ii) whether or not the credit agreements and/or indentures referred to in clause (i) remain outstanding, if designated by the Parent Borrower to be included in the definition of “Fixed Asset Facility,” one or more
(A) debt facilities, indentures or commercial paper facilities providing for revolving credit loans, term loans, notes, debentures, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other Indebtedness, in each case, with the same or different borrowers or issuers and, in each case, as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, increased, replaced or refunded in whole or in part from time to time.
“Fixed Asset Facility Collateral Agent” means the collateral agent (or, collectively, the collateral agents) for the holders of the Fixed Asset Facility.
“Fixed Charge Coverage Ratio” means the ratio as of the last day of any Fiscal Quarter (or on any date of determination other than the last day of any Fiscal Quarter, the ratio as of the last day of the most recently ended full Fiscal Quarter) of (i) an amount equal to (x) EBITDA for the four Fiscal Quarter period then ending minus (y) Consolidated Capital Expenditures made in cash during such four Fiscal Quarter period to the extent not financed with the proceeds of Indebtedness minus (z) cash taxes actually paid by the Parent Borrower and its Subsidiaries during such four Fiscal Quarter period, to (ii) Consolidated Fixed Charges for such four Fiscal Quarter period.
“Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012.
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Adjusted Term SOFR Rate, Adjusted EURIBOR Rate, each Adjusted Daily Simple
RFR, the Canadian Prime Rate, CDOR Rate or the Central Bank Rate, as applicable. For the avoidance of doubt, the initial Floor for each of Adjusted Term SOFR Rate, Adjusted EURIBOR Rate, each Adjusted Daily Simple RFR, the Canadian Prime Rate, CDOR Rate or the Central Bank Rate shall be 0%.
“Foreign Benefit Plan Event” means (i) the failure of any Credit Party or any Subsidiary to make its required contributions in respect of any Foreign Plan when such contributions are required to be made; (ii) the failure of any Credit Party or any Subsidiary to administer any Foreign Plan (other than any governmental arrangement) in accordance with its terms and all applicable laws; (iii) the occurrence of an act or omission in respect of any Foreign Plan which could give rise to the imposition on any Credit Party or any Subsidiary of fines, penalties or related charges under applicable laws; (iv) the assertion of a material claim (other than a routine claim for benefits) against any Credit Party or any Subsidiary in respect of a Foreign Plan; (v) the imposition of a Lien in respect of any Foreign Plan; or (vi) any event or condition which might constitute grounds for the termination, in whole or in part, of any Foreign Plan or the appointment of a trustee to administer any Foreign Plan.
“Foreign Borrower” means the Canadian Borrower and the European Borrowers.
“Foreign Credit Documents” means the Canadian Collateral Documents, the Dutch Collateral Documents, the UK Collateral Documents, the German Collateral Documents, the French Collateral Documents, the Belgian Collateral Documents, the Swedish Collateral Documents, the Spanish Collateral Documents, the Polish Collateral Documents, the Italian Collateral Documents and any other Credit Document which is not governed by the laws of the United States of America or any state or territory thereof.
“Foreign Excluded Assets” means any asset or undertaking not required to be charged or secured or not subject to any applicable Security Document pursuant to and in accordance with the terms of the Canadian Collateral and Guarantee Requirement and Agreed Security Principles (other than in connection with the floating charge under any UK Collateral Documents), including, subject to Section 5.9(e), the Paderborn Property.
“Foreign Intellectual Property” means any right, title or interest in or to any Intellectual Property governed by or arising or existing under, pursuant to or by virtue of the laws of any jurisdiction other than the United States of America or any state thereof.
“Foreign Plan” means each employee benefit plan, fund or arrangement (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) or other similar pension plan or program that is not subject to US law and is maintained or contributed to by any Credit Party or any Subsidiary for the benefit of its employees working outside the United States.
“Foreign Subsidiary” means each Subsidiary organized under the laws of a jurisdiction outside of the United States.
“Fraudulent Transfer Laws” as defined in Section 7.2.
“French Borrower” refers to Diebold Nixdorf, a French société par actions simplifiée, with a share capital of €12,820,080.00, with its registered office at 3, rue Paul Dautier, 6, avenue Morane Saulnier, 78140 Vélizy-Villacoublay, registered at the commercial registry of Versailles under number 410 383 533 R.C.S. Versailles, as defined in the recitals hereto, or any other Person added as a French Borrower in accordance with the terms hereof.
“French Borrowing Base” means, with respect to the French Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(a)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the French Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(b)any applicable Reserve then in effect to the extent applicable to the French Borrower or such Eligible Receivables.
“French Civil Code” means the French Code civil.
“French Collateral Documents” means any master receivables assignment agreements (and each bordereau de cession de créances professionnelles relating thereto), pledge over bank accounts, charged account control deed (as applicable) and notice of pledge relating thereto, and all other instruments and agreements delivered by any French Borrower pursuant to this Agreement or any of the other Credit Documents and the Agreed Security Principles in order to grant to the European Collateral Agent, for the benefit of the Secured Parties, a Lien as security for the Obligations, in form and substance reasonably satisfactory to the European Collateral Agent and the Administrative Agent.
“French Commercial Code” means the French Code de commerce. “French Consumer Code” means the French Code de la consommation.
“French Credit Party” means each French Borrower and each French Guarantor.
“French Guarantor” means any European Guarantor incorporated under the laws of France. “French Insolvency Event” means in respect of any French Credit Party, any insolvency where
such person is unable to pay its debts as they fall due and/or is in a state of “état de cessation des
paiements” as defined in article L. 631-1 of the French Commercial Code or encounters difficulties that it is not able to overcome within the meaning of Article L. 620-1 of the French Commercial Code, any reorganisation in the context of a mandat ad hoc or of a conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” or any accelerated safeguard “sauvegarde accélérée”.
“French Insolvency Law” means the Council of the European Union Regulation 2015/848 on insolvency proceedings, the provisions of Book VI (Livre Sixième) of the French Commercial Code and other relevant provisions related thereto of the French Commercial Code or similar debtor relief laws of France from time to time in effect.
“French Lender Tax Certificate” means a certificate substantially in the form of Exhibit D-3, appropriately completed.
“French Monetary and Financial Code” means the French Code monétaire et financier. “French Outstandings” means, with respect to any French Borrower at any particular time,the
principal amount of the Tranche B Loans made to such French Borrower outstanding at such time.
“French Qualifying Lender” means any credit institution (établissement decrédit) licensed for the purpose of carrying out credit transactions (operations de crédit) by the relevant Governmental Authorities of France; (ii) a credit institution (établissement de crédit) having its registered office in a member state of the European Union or in a state which is a party to the Treaty on the European Union, so long as the relevant Governmental Authorities of France have been notified in advance by the relevant Governmental Authority of such state; provided, that such credit institution carries out in France only those credit transactions which it is authorized to carry out in the state in which is registered office is located; or (iii) a financial institution (établissement financier) having its registered office in a member state of the European Union or in a state which is a party to the Treaty on the European Union, which has obtained a certificate from the relevant Governmental Authority of such state certifying that it meets the conditions required for that purpose by such Governmental Authority, so long as the relevant French authorities have been notified in advance by the relevant Governmental Authorities of such state; provided, that such financial institution carries out in France only those credit transactions which it is authorized to carry out in the state in which is registered office is located. For purposes of this definition, “notified in advance” refers to the satisfaction of the formalities required to benefit from applicable European passporting provisions (including the transmission by a local regulator to the French banking authority of a notice received from a financial institution to the effect that such institution intends to trade in France on a remote basis pursuant to the European passporting regulations).
“French Tax Qualifying Lender” means in relation to a payment made by a French Borrower or Guarantor under a Credit Document, a Lender which is not resident, established or otherwise located in a Non-Cooperative Jurisdiction and which (a) fulfils the conditions imposed by French law in order for such payment not to be subject to (or as the case may be, to be exempt from) any deduction or withholding for or on account of Tax; or (b) is a French Treaty Lender.
“French Treaty Lender” means in relation to a payment made by a French Borrower under a Credit Document, a Lender which:
(i)is treated as a resident of a French Treaty State for the purposes of the Treaty;
(ii)does not carry on a business in France through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and
(iii)fulfils any other conditions which must be fulfilled under the relevant Treaty for residents of that French Treaty State to obtain exemption from Tax imposed on interest by France in respect of an advance under a Credit Document.
“French Treaty State” means a jurisdiction having a double taxation agreement (a “Treaty”) with France, which makes provision for full exemption from Tax imposed by France on interest payments.
“Funding Notice” as defined in Section 2.1(b)(i).
“GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
“General Intangible” as defined in the UCC.
“German Borrower” as defined in the recitals hereto or any other Person added as a German Borrower in accordance with the terms hereof.
“German Borrowing Base” means, with respect to any German Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(c)the sum of:
(i)in the case of Eligible Receivables, the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of such German Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time); and
(ii)in the case of Eligible Inventory, the lesser of (A) 70% of the value of Eligible Inventory of such German Borrower (valued, for each class of such Eligible Inventory, at the lower of cost and market on a first-in, first-out basis) constituting each class of such Eligible Inventory at such time and (B) 90% of the Net Orderly Liquidation Value Percentage of such Eligible Inventory of such German Borrower (valued at the lower of cost and market on a first-in, first-out basis) constituting each class of Eligible Inventory at such time;
minus
(d)any applicable Reserve then in effect to the extent applicable to such German Borrower or such Eligible Receivables or Eligible Inventory.
“German Collateral Documents” means each security transfer agreement (if any), account pledge agreement and global assignment agreement (and any notice of assignment or pledge relating thereto) and all other instruments and agreements delivered by any German Credit Party pursuant to this Agreement or any of the other Credit Documents and the Agreed Security Principles in order to grant to European Collateral Agent, for the benefit of the Secured Parties, a Lien on any real, personal or mixed property of such German Borrower or German Guarantor as security for the Obligations and in form and substance satisfactory to the European Collateral Agent and the Administrative Agent.
“German Guarantor” means any Guarantor incorporated in Germany as (i) a limited liability company (Gesellschaft mit beschränkter Haftung - GmbH) (a “German GmbH Guarantor”) or (ii) a limited partnership (Kommanditgesellschaft - KG) with a limited liability company as general partner (Komplementär) (a “German GmbH & Co. KG Guarantor”).
“German Insolvency Event” means, with respect to any German Credit Party, such entity is unable to pay its debts as they fall due (Zahlungsunfähigkeit) or is over-indebted (Überschuldung) within the meaning of Sections 17 or 19 of the German Insolvency Code (Insolvenzordnung), or such entity files for the commencement of insolvency proceedings pursuant to Section 18 of the German Insolvency Code (Insolvenzordnung), commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or, if applicable, for any of the reasons set out in Sections 17 to 19 (inclusive) of the German Insolvency Code (Insolvenzordnung) an order is made or an effective resolution passed for the winding-up of the such entity (except, in any such case, a winding-up or dissolution for the purpose of a reconstruction or amalgamation the terms of which have been previously approved by the Applicable Collateral Agent); such entity stops or threatens to stop payment of its debts generally (Zahlungseinstellung); a (preliminary) insolvency administrator or a custodian for debtor in possession proceedings (Sachwalter) is appointed by any competent court; or any competent court takes any of the measures pursuant Section 21 of the German Insolvency Code (Insolvenzordnung) or decides to open insolvency proceedings pursuant to Section 27 of the German Insolvency Code (Insolvenzordnung) or debtor in possession proceedings pursuant to Section 270 of the German
Insolvency Code (Insolvenzordnung) in respect of such entity which judgment, measure, decree or order is not stayed or revoked within fourteen (14) days of commencement. For the avoidance of doubt, a measure described in section 44 para. 1 nos. 1 to 3 of the German Act on the Stabilisation and Restructuring Framework for Buinesses (StaRuG) does not constitute a German Insolvency Event.
“German Outstandings” means, with respect to any German Borrower at any particular time, the principal amount of the Tranche C Loans made to such German Borrower outstanding at such time.
“German Tax Deduction” means, with respect to a Loan to a German Borrower, a deduction or withholding from a payment under this Agreement for and on account of any Taxes imposed by Germany other than a Tax imposed under FATCA.
“German Tax Qualifying Lender” means in relation to a payment made by German Borrower, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance under a Credit Document and is (i) resident for tax purposes in Germany, (ii) lending through a facility office in Germany or (iii) a German Treaty Lender.
“German Treaty Lender” means in relation to a payment made by a German Borrower under a Credit Document, a Lender which:
(iii)is treated as a resident of a German Treaty State for the purposes of the German Treaty;
(iv)does not carry on a business in Germany through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and
(v)fulfils any other conditions which must be fulfilled under the relevant Treaty for residents of that German Treaty State to obtain exemption from Tax imposed on interest by Germany in respect of an advance under a Credit Document, subject to the completion of any necessary procedural formalities.
“German Treaty State” means a jurisdiction having a double taxation agreement with Germany (a “German Treaty”), which makes provision for full exemption from Tax imposed by Germany on interest payments.
“Global Borrowing Base” means the sum of the French Borrowing Base, each German Borrowing Base, the Belgian Borrowing Base, the Dutch Borrowing Base, the Spanish Borrowing Base, the Polish Borrowing Base, the Swedish Borrowing Base, the Italian Borrowing Base, the Canadian Borrowing Base, the UK Borrowing Base and the US Borrowing Base; provided that, notwithstanding the foregoing, (i) in no event shall the European Borrowing Base exceed 50% of the Global Borrowing Base and (ii) in no event shall the Specified Borrowing Base exceed 10% of the Global Borrowing Base.
“Global Liquidity Event Period” means any period beginning on (a) the date on which (x) solely during the Specified Availability Period, the greater of Excess Availability and Specified Availability and (y) thereafter, Excess Availability shall have been less than the Applicable Threshold for five consecutive calendar days; or (b) the date on which an Event of Default under Section 8.1(a), (e) (with respect to a Default in respect of Section 5.12(a) only), (f) or (g) or has occurred and is continuing, and ending on the first Business Day (each such date, a “Release Date”) on which (i) the Excess Availability (or, solely during the Specified Availability Period, the greater of Excess Availability and Specified Availability) is greater than the Applicable Threshold for more than 30 consecutive calendar
days and (ii) no such Event of Default has occurred and is continuing; provided that it shall also be a Global Liquidity Event Period if in any jurisdiction for which there is a Borrowing Base (or, in Germany, with respect to a particular German Borrower) a Global Liquidity Event Period would exist if that jurisdiction (or German Borrower) were the only jurisdiction (or Borrower) under this Agreement and the Applicable Threshold component amounts were reduced to equal the product of such component amounts multiplied by the percentage that jurisdiction’s Borrowing Base (or German Borrower’s Borrowing Base) represents of the Global Borrowing Base, and in such event, notwithstanding anything to the contrary, the Administrative Agent may exercise the cash dominion under Section 2.13(b) and its rights under any other provision applicable during a Global Liquidity Event Period but, with respect to this proviso, only with respect to the jurisdiction (or German Borrower) that is subject to this proviso.
“Governmental Authority” means any federal, state, provincial, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government (together with any European supranational body, including the European Central Bank and the Council of Ministers of the European Union) or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
“Governmental Authorization” means any permit, license, authorization, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Guarantee Obligation” means as to any Person (the “guaranteeing person”), any obligation, including a reimbursement, counterindemnity or similar obligation, of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrowers in good faith.
“Guaranteed Obligations” means, with respect to any Guarantor, the Obligations guaranteed by such Guarantor pursuant to Section 7.1.
“Guarantor” means subject to any limitations set forth in Section 7.17 with respect to the European Credit Parties, each US Borrower, each Canadian Borrower, each European Borrower (other than the Swiss Borrower) and each other Subsidiary of the Parent Borrower that is party hereto on the
Closing Date, or becomes party hereto at any time after the Closing Date, as a Guarantor; provided that Excluded Subsidiaries, the Swiss Borrower and any other Person incorporated in Switzerland and/or qualifying as a Swiss resident pursuant to article 9 of the Swiss Withholding Tax Act shall not be required to be Guarantors.
“Guarantor Subsidiary” means each Guarantor other than the Parent Borrower. “Guaranty” means the guaranty of each Guarantor set forth in Section 7.
“Guidelines” means the guidelines S-02.123 in relation to interbank loans of 22 September 1986 as issued by the Swiss Federal Tax Administration (Merkblatt S-02.123 vom 22 September 1986 betreffend Zinsen von Bankguthaben, deren Gläubiger Banken sind Interbankguthaben), S-02.130.1 in relation to money market instruments and accounts receivable of April 1999 (Merkblatt S-02.130.1 vom April 1999 “Geldmarktpapiere und Buchforderungen inländischer Schuldner”), the circular letter No. 15 (1-015-DVS-2017) of 3 October 2017 in relation to bonds and derivative financial instruments as subject matter of taxation of Swiss federal income tax, Swiss withholding tax and Swiss stamp taxes (Kreisschreiben Nr. 15 “Obligationen und derivative Finanzinstrumente als Gegenstand der direkten Bundessteuer, der Verrechnungssteuer und der Stempelabgaben” vom 3. Oktober 2017) and the circular letter No. 34 of 26 July 2011 (1-034-V-2011) in relation to customer credit balances (Kreisschreiben Nr. 34 “Kundenguthaben” vom 26. Juli 2011) and the practice note 010-DVS-2019 dated 5 February 2019 published by the Swiss Federal Tax Administration regarding Swiss Withholding Tax in the Group (Mitteilung-010-DVS-2019-d vom 5. Februar 2019 - Verrechnungssteuer: Guthaben im Konzern), the circular letter No. 46 of 24 July 2019 (1-046-VS-2019) in relation to syndicated credit facilities, promissory note loans, bills of exchange and subparticipations (Kreisschreiben Nr. 46 vom 24. Juli 2019 betreffend “Steuerliche Behandlung von Konsortialdarlehen, Schuldscheindarlehen, Wechseln und Unterbeteiligungen”) and the circular letter No. 47 of 25 July 2019 (1-047-V-2019) in relation to bonds (Kreisschreiben Nr. 47 vom 25. Juli 2019 betreffend “Obligationen”) as issued, and as amended or replaced from time to time by the Swiss Federal Tax Administration, or as applied in accordance with a tax ruling (if any) issued by the Swiss Federal Tax Administration, or as substituted or superseded and overruled by any law, statute, ordinance, regulation, court decision or the like as in force from time to time.
“Hazardous Materials” means any chemical, material, substance, waste, pollutant or contaminant, or compound in any form or any nature, including petroleum and petroleum products, asbestos and asbestos-containing materials, polychlorinated biphenyls, radioactive materials, and per- and polyfluoroalkyl substances, that is harmful or deleterious or that is regulated pursuant to, or that could reasonably be expected to result in liability under, any Environmental Law.
“Hedge Agreement” means a Swap Contract entered into with an Approved Counterparty in order to satisfy the requirements of any Fixed Asset Facility or otherwise in the ordinary course of the Parent Borrower’s or any of its Subsidiaries’ businesses, which Swap Contract has been designated in writing as a Hedge Agreement by the Parent Borrower to the Administrative Agent, which designation shall include a certification as to the maximum principal exposure amount permitted under such Swap Contract. For the avoidance of doubt, the Parent Borrower may rescind such designation (or deliver a certificate certifying as to a modified amount of such maximum exposure amount that shall constitute Obligations) by written notice to the Administrative Agent.
“Historical Financial Statements” means as of the Closing Date, (i) the audited consolidated financial statements of each of the Parent Borrower and its Subsidiaries for the Fiscal Year ended December 31, 2021 and (ii) the unaudited consolidated financial statements of each of the Parent Borrower and its Subsidiaries as at the Fiscal Quarter ended March 31, 2022, June 30, 2022 and
September 30, 2022, consisting of a balance sheet and the related consolidated statements of income, stockholders’ equity and cash flows for the three-, six- or nine- month period, as applicable, ending on such date.
“HMRC DT Treaty Passport scheme” means the Double Taxation Treaty Passport scheme operated by His Majesty’s Revenue and Customs in the United Kingdom.
“Immaterial Subsidiary” means each Subsidiary of the Parent Borrower now existing or hereafter acquired or formed and each successor thereto, which accounts for not more than (a) 5.0% of the consolidated gross revenues (after intercompany eliminations) of the Parent Borrower and its Subsidiaries or (b) 5.0% of the Total Assets (after intercompany eliminations) of the Parent Borrower and its Subsidiaries, in each case, as of the last day of the most recently completed fiscal quarter of the Parent Borrower for which financial statements were delivered pursuant to Section 5.1(a) or (b); provided that if the Subsidiaries that constitute Immaterial Subsidiaries pursuant to the preceding portion of this definition account for, in the aggregate, more than 10.0% of such consolidated gross revenues or more than 10.0% of the Total Assets, each as described in the preceding portion of this definition, then the term “Immaterial Subsidiary” shall not include each such Subsidiary (starting with the Subsidiary that accounts for the most consolidated gross revenues or Total Assets and then in descending order) necessary to account for at least 90% of the consolidated gross revenues and 90% of the Total Assets, each as described in clause (a) above.
“Increased-Cost Lender” as defined in Section 2.22.
“Indebtedness” of a Person means, without duplication, such Person’s (a) obligations for borrowed money or similar obligations, (b) obligations representing the deferred purchase price of Property or services (other than accounts payable and/or accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case arising in the ordinary course of such Person’s business payable in accordance with customary practices), (c) obligations which are evidenced by notes, acceptances, or other instruments, to the extent of the amounts actually borrowed, due, payable or drawn, as the case may be, (d) Finance Lease Obligations, (e) all reimbursement obligations in respect of Letters of Credit (other than commercial Letters of Credit referenced in clause (b), whether drawn or undrawn, contingent or otherwise, (f) any other obligation for borrowed money or similar financial accommodation which in accordance with GAAP would be shown as a liability on the consolidated balance sheet of such Person, (g) Off-Balance Sheet Liabilities, (h) Guarantee Obligations with respect to any of the foregoing and (i) all obligations of the kind referred to in the foregoing clauses secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, provided that, if such Person has not assumed such obligations, then the amount of Indebtedness of such Person for purposes of this clause (i) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations.
“Indemnified Liabilities” means, collectively, any and all liabilities, obligations, losses, damages (including natural resource damages), penalties, claims (including Environmental Claims), costs (including the costs of any investigation, study, sampling, testing, abatement, cleanup, removal, remediation or other response action necessary to remove, remediate, clean up or abate any Hazardous Materials), expenses and disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of counsel for Indemnitees), including those arising out of or relating to an action, investigation, suit or proceeding commenced or threatened by any Credit Party or Person, whether or not any such Indemnitee shall be designated as a party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing this indemnity, whether direct, indirect or consequential and
whether based on any federal, state, provincial, territorial or foreign laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise, that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner relating to or arising out of (i) this Agreement, the other Credit Documents or the transactions contemplated hereby or thereby (including the Lenders’ agreement to make Credit Extensions or the use or intended use of the proceeds thereof, or any enforcement of any of the Credit Documents (including any sale of, collection from, or other realization upon any of the Collateral or the enforcement of the Guaranty)) or (ii) any presence, Release or threat of Release of Hazardous Materials on, at, under or from any property currently or formerly owned or operated by any Credit Party or their respective Subsidiaries or any Environmental Liability of any Credit Party or their respective Subsidiaries.
“Indemnitee” as defined in Section 10.3(a).
“Independent Financial Advisor” means an accounting, appraisal, investment banking firm or consultant to Persons engaged in similar businesses of nationally recognized standing that is, in the good faith judgment of the Parent Borrower, qualified to perform the task for which it has been engaged.
“Initial Lender” means each Lender that is a party hereto on the Closing Date.
“Insolvency Regulation” means Regulation (EU) No 2015/848 on insolvency proceedings (recast), as amended from time to time.
“Intellectual Property” as defined in the Security Agreement.
“Intellectual Property Security Agreement” means each Copyright Security Agreement, Patent Security Agreement and Trademark Security Agreement, in each case as defined in the Security Agreement.
“Intercreditor Agreement” means that certain ABL Intercreditor Agreement, dated as of the date hereof, among the Credit Parties, the Administrative Agent, the Collateral Agent, the European Collateral Agent, each Fixed Asset Facility Collateral Agent and the other parties thereto, as the same may be amended, supplemented, replaced, restated or otherwise modified from time to time.
“Interest Payment Date” means with respect to (i) any Revolving Loan that is an ABR Loan or Canadian Prime Rate Loan (other than a Swing Line Loan), the first Business Day of each quarter and the Revolving Commitment Termination Date, (ii) with respect to any Revolving Loan that is a RFR Loan,
(1) each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month) and (2) the Revolving Commitment Termination Date, (iii) any Revolving Loan that is a Term Benchmark Loan, the last day of each Interest Period applicable to such Loan and the Revolving Commitment Termination Date (provided, in the case of each Interest Period of longer than three months, “Interest Payment Date” shall also include each date that is three months, or an integral multiple thereof, after the commencement of such Interest Period) and (iv) any Swing Line Loan or Protective Advance, the first Business Day of each month following the making of such Loan and the date that such Loan or Protective Advance is required to be repaid.
“Interest Period” means, in connection with (i) a Term Benchmark Loan (other than any CDOR Rate Borrowing), an interest period of one, three or six months (or any other period agreed to between the Parent Borrower and the Administrative Agent which is available to all relevant Lenders) (in each case, subject to the availability for the Benchmark applicable to the relevant Loan or Revolving Commitment
for any Agreed Currency), as selected by the Parent Borrower in the applicable Funding Notice or Conversion/Continuation Notice and (ii) any CDOR Rate Borrowing, an interest period of one, two or three months (or any other period agreed to between the Parent Borrower and the Administrative Agent which is available to all relevant Lenders) (in each case, subject to the availability for the CDOR Rate), as selected by the Parent Borrower in the applicable Funding Notice or Conversion/Continuation Notice, in each case (a) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (b) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided that (w) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (x) 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, subject to clause (c) of this definition, end on the last Business Day of a calendar month; (y) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the Revolving Commitment Termination Date; and (z) no tenor that has been removed from this definition pursuant to Section 2.25(e) shall be available for specification in such Funding Notice or Conversion/Continuation Notice.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with Parent Borrower’s and its Subsidiaries’ operations and not for speculative purposes.
“Internal Revenue Code” or the “Code” means the Internal Revenue Code of 1986, as amended through the date hereof.
“Investment” of a Person means any loan, advance (other than commission, travel and similar advances to officers and employees made in the ordinary course of business), extension of credit (other than accounts receivable and/or accrued expenses arising in the ordinary course of business payable in accordance with customary practices and loans to employees in the ordinary course of business), Acquisition or equity investment or contribution of capital by such Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or other securities owned by such Person.
“Issuance Notice” means an Issuance Notice substantially in the form of Exhibit A-3.
“Issuer Documents” shall mean with respect to any Letter of Credit, the Issuance Notice, and any other document, agreement and instrument entered into by the applicable Issuing Bank and the Parent Borrower (or any Subsidiary) or in favor of such Issuing Bank and relating to such Letter of Credit.
“Issuing Bank” means, collectively, (a) JPMorgan, (b) Credit Suisse AG, Cayman Islands Branch and (c) any Lender or Affiliate of such Lender that hereafter becomes an Issuing Bank as designated by the Parent Borrower and reasonably acceptable to the Administrative Agent, by agreeing pursuant to an agreement with, and in form and substance reasonably satisfactory to, the Administrative Agent and the Parent Borrower to be bound by the terms hereof applicable to Issuing Banks, in each case, together with its permitted successors and assigns in such capacity.
“Italian Account Debtor” means any Account Debtor incorporated under the laws of the Republic of Italy.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, integrated and supplemented from time to time.
“Italian Bankruptcy Law” means the Italian Royal Decree No. 267 of 16 March 1942 (Disciplina del fallimento, del concordato preventivo e della liquidazione coatta amministrativa), as amended and supplemented from time to time (including pursuant to Decree Law No. 118 of 24 August 2021, as converted into law with amendments and supplemented from time to time).
“Italian Borrower” as defined in the recitals hereto or any other Person added as an Italian Borrower in accordance with the terms hereof.
“Italian Borrowing Base” means, with respect to the Italian Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(a)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Italian Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(b)any applicable Reserve then in effect to the extent applicable to the Italian Borrower or such Eligible Receivables.
“Italian Civil Code” means the Italian civil code (“codice civile”), enacted by Royal Decree No.
262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Collateral Documents” means any receivables assignment agreements, bank account pledge agreements and all other instruments and agreements delivered by any Italian Borrower pursuant to this Agreement or any of the other Credit Documents and the Agreed Security Principles in order to grant to the Secured Parties (also through the European Collateral Agent, where applicable), a Lien on any personal or mixed property of such Italian Borrower as security for the Obligations and in form and substance satisfactory to the European Collateral Agent and the Administrative Agent.
“Italian Credit Party” means each Italian Borrower and each Italian Guarantor.
“Italian Crisis and Insolvency Code” means the Legislative Decree No. 14 of 12 January 2019 (Codice della crisi d'impresa e dell'insolvenza in attuazione della legge 19 ottobre 2017, n. 155), as amended, supplemented and implemented from time to time (including by virtue of the Italian Legislative Decree No. 83 of 17 June 2022 implementing the EU Directive 2019/1023 of 20 June 2019, as supplemented from time to time).
“Italian Guarantor” means any European Guarantor incorporated under the laws of Italy. “Italian Lender Tax Certificate” means a certificate substantially in the form of Exhibit D-2,
appropriately completed.
“Italian Obligor” means, jointly, any Italian Borrower and any Italian Guarantor.
“Italian Outstandings” means, with respect to any Italian Borrower at any particular time, the principal amount of the Tranche B Loans made to such Italian Borrower outstanding at such time.
“Italian Tax Qualifying Lender” means in relation to a payment made by an Italian Borrower under a Credit Document, a Lender which is beneficially entitled to interest payable to that Lender and is:
(a)a bank, financial institution or insurance undertaking duly authorised or licensed to carry out banking or lending activity in Italy pursuant to Italian Banking Law or an alternative investment fund established under Directive 2011/61/EU and duly authorised or licensed to carry out lending activity under Legislative Decree No. 58 dated 24 February 1998 that is a resident of Italy for tax purposes pursuant to article 73 of Italian Presidential Decree No. 917 of 22 December 1986 not acting for the purposes of a Credit Document through a facility office or, in any case, a permanent establishment located outside of Italy; or
(b)a permanent establishment in Italy of a foreign bank, insurance company or other financial institution duly authorised or licensed to carry out lending activities vis-à-vis the public within the territory of Italy, for which any payment received and beneficially owned under a Credit Document is taxable as business income (“reddito d’impresa”) pursuant to article 81, 151 and 152, paragraph 1, of Italian Presidential Decree No. 917 of
22 December 1986; or
(c)a securitisation company incorporated under Law No. 130 of April 30, 1999, that is resident in Italy for tax purposes pursuant to article 73 of Italian Presidential Decree No. 917 of 22 December 1986 not acting for the purposes of a Credit Document through a permanent establishment (stabile organizzazione) located outside of Italy; or
(d)a bank established in a member state of the European Union or acting through a permanent establishment (stabile organizzazione) located in a member state of the European Union; or
(e)an insurance company incorporated in and authorised under the laws of a member state of the European Union; or
(f)an institutional investor (“investitore instituzionale”) pursuant to Article 6, paragraph 1, letter b), of Legislative Decree 1 April 1996, No. 239 subject to regulatory supervision in the country in which it is established; or
(g)an entity included in the list provided for by Article 2, paragraph 5, numbers from 4) to
23) of the Directive No. 2013/36/EU; or
(h)an entity that:
a.is treated as a resident of the relevant Italian Treaty State for the purposes of the relevant Italian Treaty and is entitled to the benefit of such Italian Treaty; and
b.does not carry on a business in Italy through a permanent establishment with which that Lender’s participation in the facility is effectively connected; and
c.fulfils any other conditions which must be fulfilled by residents of that Italian Treaty State for such residents to obtain full exemption under the Italian Treaty from Tax imposed by Italy on interest, including the completion of any necessary procedural formalities, including the timely file of an Italian Lender Tax Certificate; or
(i)in respect of any Letter of Credit, an entity which under Article 26-bis of Presidential Decree No. 600 of 29 September 1973, is beneficially entitled to receive any
relevant fees and other commission from Italy without a deduction or withholding on account of Tax.
“Italian Treaty State” means a jurisdiction having a double taxation agreement in force (an “Italian Treaty”) with Italy, which makes provision for full exemption for Tax imposed by Italy on payments under this Agreement.
“Italian Usury Law” means Italian Law No. 108 of 7 March 1996, as subsequently amended and supplemented from time to time.
“Joinder Agreement” means an agreement substantially in the form of Exhibit N.
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in corporate, partnership or other legal form.
“Judgment Currency” as defined in Section 10.3(c).
“Junior Priority” means, with respect to any Lien created in any ABL Collateral pursuant to any Collateral Document, that such Lien is subordinated to the Liens on such Collateral created by the Collateral Documents.
“Landlord Personal Property Collateral Access Agreement” means a Landlord Waiver and Consent Agreement substantially in the form of Exhibit J (or such other form as may be agreed to by the Administrative Agent) with such amendments or modifications as may be approved by the Administrative Agent.
“Laws” means, collectively, all applicable international, foreign, federal, state, provincial and local statutes, statutory instruments, acts, treaties, rules, guidelines, regulations, directives, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority.
“Lead Arrangers” means JPMorgan and PNC Capital Markets LLC in their respective capacities as lead arranger and bookrunner for the Revolving Credit Facility.
“Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property.
“Lender” means each financial institution listed on the signature pages hereto as a Lender, and any other Person that becomes a party hereto as a Lender pursuant to an Assignment Agreement, a Joinder Agreement or any amendment hereto. For the avoidance of doubt, no Lender shall make available Tranche B Loans to the French Borrowers unless it qualifies as a French Qualifying Lender and no Lender shall make available Tranche B Loans to the Italian Borrowers unless it qualified as an Italian Tax Qualifying Lender and it is duly licensed to carry out lending activities in Italy pursuant to the applicable laws and regulations.
“Lender Default” means (i) the refusal (which may be given verbally or in writing and has not been retracted) or failure of any Lender to make available its portion of any incurrence of Loans or reimbursement obligations (together, the “funding obligations”), which refusal or failure is not cured within three business days after the date of such refusal or failure; (ii) the failure of any Lender to pay
over to the Administrative Agent, any Issuing Bank or any other Lender any other amount required to be paid by it hereunder within three business days of the date when due, unless the subject of a good faith dispute; (iii) a Lender has notified the Parent Borrower or 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; (iv) a Lender has failed, within three Business Days after request by the Administrative Agent, to confirm that it will comply with its funding obligations hereunder; or (v) a Lender has admitted in writing that it is insolvent or such Lender becomes subject to a Lender-Related Distress Event.
“Lender-Related Distress Event” means, with respect to any Lender or any person that directly or indirectly controls such Lender (each, an “ABL Distressed Person”), as the case may be, a voluntary or involuntary case with respect to such ABL Distressed Person under any debt relief law, or a custodian, conservator, receiver, interim receiver, monitor or similar official is appointed for such ABL Distressed Person or any substantial part of such ABL Distressed Person’s assets, or such ABL Distressed Person or any person that directly or indirectly controls such ABL Distressed Person is subject to a forced liquidation, or such ABL Distressed Person makes a general assignment for the benefit of creditors or is otherwise adjudicated as, or determined to be, insolvent or bankrupt; provided that an ABL Lender- Related Distress Event shall not be deemed to have occurred solely by virtue of the ownership or acquisition of any equity interests in any Lender or any person that directly or indirectly controls such Lender by a governmental authority or an instrumentality thereof.
“Letter of Credit” means each standby letter of credit issued by any Issuing Bank pursuant to this Agreement.
“Letter of Credit Obligations” means the Tranche A Letter of Credit Obligations.
“Letter of Credit Reimbursement Agreement” means the Tranche A Letter of Credit Reimbursement Agreement.
“Letter of Credit Sublimit” means the Tranche A Letter of Credit Sublimit. The Letter of Credit Sublimit of each individual Issuing Bank as of the Closing Date is set forth on Appendix C hereto.
“Letter of Credit Undrawn Amounts” means the Tranche A Letter of Credit Undrawn Amounts.
“Letter of Credit Usage” means the Tranche A Letter of Credit Usage.
“Liabilities” means any losses, claims (including intraparty claims), demands, damages or liabilities of any kind.
“Lien” means any lien, mortgage, pledge, security interest, hypothec, assignment by way of security, charge or encumbrance of any kind (including any agreement or mandate to give any of the foregoing, any conditional sale right of retention (retentierecht), privilege (voorrecht), retention of title arrangements (eigendomsvoorbehoud), right of reclamation (recht van reclame) or other title retention agreement, any transfer by way of security, and any lease in the nature thereof (but excluding bona fide operating leases)) and any privilege, option, trust or other preferential arrangement having the practical effect of any of the foregoing.
“Line Cap” means the lesser of the (a) Global Borrowing Base and (b) the Revolving Commitments under the Revolving Credit Facility.
“Loan” means a Revolving Loan or a Swing Line Loan, as applicable.
“Local Time” means (a) with respect to a Loan, Letter of Credit, Protective Advance or Borrowing to a US Borrower, New York City time, (b) with respect to a Loan to a Canadian Borrower, Toronto, Ontario time (c) with respect to a Loan to a European Borrower, London time, and (d) for all other matters, New York City time.
“Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to
time.
“Material Adverse Effect” means a material adverse effect on (i) the business, Property, operations or condition (financial or otherwise) of the Parent Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Credit Parties, taken as a whole, to pay the Obligations under the Credit Documents, or (iii) the validity or enforceability against any of the Credit Parties of any of the Credit Documents or the rights or remedies of the Administrative Agent, Collateral Agent or the Lenders thereunder.
“Maximum Credit” means the Tranche A Maximum Credit, the Tranche B Maximum Credit and/or the Tranche C Maximum Credit, as the case may be.
“Moody’s” means Moody’s Investors Service, Inc. (or any successor thereof).
“Mortgage” means a mortgage, charge, deed of trust, deed of hypothec, debenture or deed to secure debt, in form and substance reasonably satisfactory to the Applicable Collateral Agent and, if the Applicable Collateral Agent is the European Collateral Agent, the Administrative Agent, as it may be amended, supplemented or otherwise modified from time to time.
“Mortgaged Property” means any real property and the improvements thereon owned in fee by a Loan Party with respect to which a Mortgage is granted pursuant to Section 3.1 (if any) or Section 5.9 (if any).
“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA and subject to Title IV of ERISA, to which any Credit Party or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.
“NAIC” means The National Association of Insurance Commissioners, and any successor
thereto.
“Net Assets” means a German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) assets pursuant to Section 266 sub-section (2) A, B, C, D and E of the German Commercial Code (Handelsgesetzbuch) less the aggregate of its liabilities pursuant to Section 266 sub-section (3) B, C, D and E of the German Commercial Code, taking into consideration the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the respective German Guarantor in the preparation of its financial statements.
“Net Cash Proceeds” means, in connection with any issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash proceeds received from such issuance or incurrence, net of attorneys’ fees, investment banking fees, accountants’ fees, underwriting discounts or placement agents’ fees, listing
fees, discounts or commissions, brokerage, consultant and other fees and charges and commissions and other customary fees and expenses actually incurred in connection therewith.
“Net Orderly Liquidation Value Percentage” means the orderly liquidation value (net of costs and expenses incurred in connection with liquidation) of Eligible Inventory as a percentage of the cost of such inventory, which percentage shall be determined on a first-in, first-out basis by reference to the most recent third-party appraisal of such inventory received by the Administrative Agent in accordance with the terms hereof.
“New 2L Notes Indenture” means that certain indenture, dated as of the Closing Date, among the Parent Borrower, the Guarantors party thereto, U.S. Bank Trust Company National Association, as trustee, and GLAS Americas LLC, in its capacity as collateral agent, as amended or supplemented from time to time, relating to the New 2L Notes.
“New 2L Notes” means the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 issued pursuant to the New 2L Notes Indenture.
“Non-Consenting Lender” as defined in Section 2.22.
“Non-Cooperative Jurisdiction” means a non-cooperative state or territory (état ou territoire non coopératif) as set out in the list referred to in Article 238-0 A of the French tax code, as such list may be amended from time to time.
“Non-Defaulting Lender” means, at any time, a Lender that is not a Defaulting Lender. “Non-Excluded Taxes” means all Taxes other than Excluded Taxes.
“Non-US Lender” means, with respect to any Loan made to a US Borrower, any Lender or Issuing Bank that is not a “United States person” within the meaning of Section 7701(a)(30) of the Internal Revenue Code.
“Note” means a Revolving Loan Note or a Swing Line Note.
“Notice” means a Funding Notice, an Issuance Notice, Swing Line Request or a Conversion/Continuation Notice.
“NYFRB” means the Federal Reserve Bank of New York.
“NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than 0%, such rate shall be deemed to be 0% for purposes of this Agreement.
“NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.
“Obligations” means, collectively, the US Obligations, the Canadian Obligations and the European Obligations.
“Obligee Guarantor” as defined in Section 7.7.
“Off-Balance Sheet Liability” of a Person means (i) any obligation under a Sale and Leaseback Transaction which is not a Finance Lease Obligation, (ii) any so-called “synthetic lease” or “tax ownership operating lease” transaction entered into by such Person, (iii) any factoring or similar sale of accounts receivable and related rights to the extent recourse to the Parent Borrower or any of its Subsidiaries, or (iv) any other transaction (excluding operating leases for purposes of this clause (iv)) which is the functional equivalent of or takes the place of borrowing (in the case of transactions described in, or equivalent to those described in clause (iii) above, solely to the extent recourse to the Parent Borrower or any of its Subsidiaries) but which does not constitute a liability on the balance sheet of such Person; in all of the foregoing cases, notwithstanding anything herein to the contrary, the outstanding amount of any Off-Balance Sheet Liability shall be calculated based on the aggregate outstanding amount of obligations outstanding under the legal documents entered into as part of any such transaction on any date of determination that would be characterized as principal if such transaction were structured as a secured lending transaction, whether or not shown as a liability on a consolidated balance sheet of such Person, in a manner reasonably satisfactory to the Administrative Agent.
“Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization (atto costitutivo and statuto, in relation to an Italian Credit Party), as amended, and its by-laws, as amended (in each case, or document of similar import), (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended (in each case, or document of similar import), (iii) with respect to any general partnership, its partnership agreement, as amended (in each case, or document of similar import), (iv) with respect to any limited liability company, its certificate of incorporation, articles of organization (or memorandum and articles of organization of incorporation), as amended, and its operating agreement, as amended (in each case, or document of similar import) (v) with respect to a Dutch private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) or Dutch limited liability company (naamloze vennootschap), its deed of incorporation and its articles of association and an extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of such Dutch company, (vi) with respect to a Dutch limited partnership (commanditaire vennootschap), the partnership agreement and an extract (uittreksel) from the Dutch Commercial Register (Handelsregister) of such Dutch limited partnership, (vii) with respect to any Credit Party incorporated under the laws of France, its statuts and extrait K-bis (viii) with respect to any Swedish limited liability company, a certificate of registration (Sw. registreringsbevis) and its articles of association (Sw. bolagsordning), (ix) with respect to any Polish Credit Party, its articles of association (umowa spółki z ograniczoną odpowiedzialnością) or statute (statut) and an information equivalent to a full extract from Polish National Court Registry (informacja odpowiadająca odpisowy pełnemu z rejestru przedsiębiorców Krajowego Rejestru Sądowego); (x) with respect to any Credit Party incorporated under the laws of Belgium, (a) the deed of incorporation, (b) most recent coordinated articles of association, (c) an extract from the Crossroads Bank for Enterprises (Kruispuntbank van Ondernemingen/Banque Carrefour des Entreprises), and (d) a copy of the complete and up-to-date share register, (xi) with respect to a German limited liability company (Gesellschaft mit beschränkter Haftung - GmbH), the articles of association, the shareholder list, an excerpt from the commercial register (Handelsregister), and any by-laws (Geschäftsordnung) of any of its corporate bodies, (xii) with respect to a German a limited partnership (Kommanditgesellschaft - KG), the partnership agreement, an excerpt from the commercial register (Handelsregister), and any by-laws (Geschäftsordnung) of any of its corporate bodies, and in case its general partner (Komplementär) is alimited liability company, the documents listed under clause (xi) above in relation to such entity, (xiii) with respect to an Italian company, its deed of incorporation (atto costitutivo) and by-laws (statuto), (xiv) in respect of an English private limited company, its certificate of incorporation, certificates of incorporation on change of name (if any) and memorandum and articles of association, (xv) with respect to an Italian company, its deed of incorporation (atto costitutivo) and by-laws (statuto), (xvi) in respect of a Swiss stock corporation
(Aktiengesellschaft or Gesellschaft mit beschränkter Haftung), the articles of association (Statuten) and an excerpt from the relevant commercial register (Handelsregisterauszug) and (xvii) in each case, similar organizational documents in any other applicable jurisdiction of a European Credit Party. In the event any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Taxes” means any and all present or future stamp or documentary Taxes or any other excise or property Taxes arising from any payment made under any Credit Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Credit Document, except any such Taxes that are described in clause (a)(ii) of the definition of Excluded Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.22).
“Overnight Bank Funding Rate” means, for any day, the rate comprised of both overnight federal funds and overnight eurodollar transactions denominated in Dollars by U.S.-managed banking offices of depository institutions, as such composite rate shall be determined by the NYFRB as set forth on the NYFRB’s Website from time to time, and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.
“Paderborn Property” means the fee-owned real property located at Heinz-Nixdorf-Ring 1, 33106 Paderborn, Germany.
“Parallel Debt” has the meaning assigned to such term in the Intercreditor Agreement. “Parent Borrower” as defined in the preamble hereto.
“Participating Member State” means a member state of the European Communities that has adopted the Euro as its lawful currency in accordance with legislation of the European Community for Economic and Monetary Union.
“Party” as defined in Section 2.19(u).
“PATRIOT Act” means the USA PATRIOT Act of 2001 (31 U.S.C. 5318 et seq.). “Payment” has the meaning assigned to such term in Section 9.6(d).
“Payment Conditions” means, at any time of determination, (i) no Default or Event of Default shall have occurred and be continuing or result from any specified event, (ii) the Fixed Charge Coverage Ratio would be at least 1.1:1.0 on a Pro Forma Basis, (iii) Excess Availability would on a Pro Forma Basis be at least the greater of (x) $56.25 million and (y) 22.5% of the Line Cap and (iv) unrestricted Cash and Cash Equivalents of the Parent Borrower and its Subsidiaries would on a Pro Forma Basis be at least $140,000,000.
“Payment Notice” has the meaning assigned to such term in Section 9.6(d).
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“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 Credit Party or any ERISA Affiliate or to which any Credit Party or any ERISA
Affiliate contributes or has an obligation to contribute or with respect to which any Credit Party or any ERISA Affiliate has any liability.
“Pensions Regulator” means the body corporate called the Pensions Regulator under Part I of the Pensions Act 2004 (UK).
“Permit” means any permit, approval, authorization, license, variance or permission required from a Governmental Authority under applicable law.
“Permitted Discretion” means a determination made in good faith and in the exercise of reasonable (from the perspective of a secured asset-based lender) business judgment.
“Permitted Encumbrances” means:
(a)Liens imposed by law or any Governmental Authority for taxes, assessments or governmental charges or levies that are not yet overdue for a period of more than 45 days or are being contested in good faith by appropriate proceedings and with respect to which reserves have been set aside in accordance with GAAP;
(b)carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s and other like Liens imposed by law, arising in the ordinary course of business and securing obligations that are not overdue by more than 60 days or are being contested in good faith by appropriate proceedings and with respect to which reserves have been set aside in accordance with GAAP;
(c)pledges and deposits made in the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security or employment laws or regulations;
(d)deposits to secure the performance of bids, trade contracts, tenders, government contracts, leases, statutory obligations, surety, stay, custom and appeal bonds, performance bonds and other obligations of a like nature, in each case in the ordinary course of business;
(e)judgment liens in respect of judgments that do not constitute a Default under Section 8.1(h) or that secure appeal or surety bonds related to such judgments;
(f)easements, zoning restrictions, rights-of-way and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Parent Borrower or any Subsidiary;
(g)easements, zoning restrictions, rights-of-way, use restrictions, encroachments, protrusions, minor defects or irregularities in title, reservations (including reservations in any original grant from any government of any water or mineral rights or interests therein) and similar encumbrances on real property imposed by law or arising in the ordinary course of business that do not secure any monetary obligations and do not materially detract from the value of the affected property or interfere with the ordinary conduct of business of Parent Borrower and its Subsidiaries, taken as a whole;
(h)Liens in favor of payor banks having a right of setoff, revocation, refund or chargeback with respect of money or instruments of Parent Borrower or any Subsidiary on deposit with or in possession of such bank;
(i)Liens granted by (1) a Credit Party to another Credit Party, (2) a Subsidiary that is not a Credit Party to a Credit Party and (3) a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party;
(j)for the avoidance of doubt, other Liens (not securing Indebtedness) incidental to the conduct of the business of Parent Borrower or any of its Subsidiaries, as the case may be, or the ownership of their assets which do not individually or in the aggregate materially adversely affect the value of Parent Borrower or materially impair the operation of the business of Parent Borrower or its Subsidiaries;
(k)Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person’s obligation in respect of banker’s acceptances issued or created in the ordinary course of business for the account of such Person to facilitate the purchase, shipment, or storage of such inventory or other goods;
(l)leases, subleases, licenses or sublicenses (other than with respect to Intellectual Property) granted to others in the ordinary course of business which do not materially interfere with the ordinary conduct of the business of Parent Borrower or any Subsidiary and do not secure any Indebtedness;
(m)non-exclusive leases, subleases, licenses and sublicenses of Intellectual Property granted to others in the ordinary course of business;
(n)exclusive leases, subleases, licenses and sublicenses of Intellectual Property solely within the granted territory in the ordinary course of business;
(o)deposits in the ordinary course of business to secure liability to insurance carriers;
(p)options, put and call arrangements, rights of first refusal and similar rights relating to Investments in joint ventures, partnerships and the like permitted to be made under this Agreement;
(q)Liens arising out of any conditional sale, title retention, consignment or other similar arrangements for the sale of goods entered into by Parent Borrower or any of its Subsidiaries in the ordinary course of business of Parent Borrower or such Subsidiary;
(r)rights of set-off, banker’s lien, netting agreements and other Liens arising by operation of law or by of the terms of documents of banks or other financial institutions (i) in relation to the establishment, maintenance or administration of deposit accounts, securities accounts or arrangements relating to a cash management agreement or Swap Contract, (ii) in relation to pooled deposit or sweep accounts to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of Parent Borrower or any Subsidiary or (iii) in relation to the right of setoff, revocation, refund or chargeback of a collecting bank with respect to money or instruments in the possession of such bank;
(s)Liens in favor of customs and revenues authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods in the ordinary course of business; and
(t)precautionary financing statement filings in connection with operating leases.
provided that, in any event, the term “Permitted Encumbrances” shall not include any Lien securing Indebtedness for borrowed money.
“Permitted Liens” means each of the Liens permitted pursuant to Section 6.5.
“Permitted Priority Liens” means Permitted Liens described in Section 6.5(b), (g) and (l) and clauses (a), (b), (c), (d), (e), (f), (g), (h), (j), (k), (l), (o), (r), and (s) of the definition of “Permitted Encumbrance”.
“Permitted Refinancing Indebtedness” means any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) (collectively, to “Refinance”), the Indebtedness being Refinanced (or previous refinancings thereof constituting Permitted Refinancing Indebtedness); provided that (a) the original principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness so Refinanced (plus unpaid accrued interest and premium (including tender premiums) thereon, any committed or undrawn amounts and underwriting discounts, defeasance costs, fees, commissions and expenses, associated with such Permitted Refinancing Indebtedness), (b) the final maturity date and weighted average life of such Permitted Refinancing Indebtedness is no earlier than the final maturity date and then remaining weighted average life of the Indebtedness being Refinanced, (c) if the original Indebtedness being Refinanced is by its terms subordinated in right of payment to the Obligations, such Permitted Refinancing Indebtedness shall be subordinated in right of payment to the Obligations on terms at least as favorable to the Lenders as those contained in the documentation governing the Indebtedness being Refinanced, taken as a whole, (d) no Permitted Refinancing Indebtedness shall have obligors or contingent obligors that were not obligors or contingent obligors in respect of the Indebtedness being Refinanced, (e) if the Indebtedness being Refinanced is (or would have been required to be) secured (whether senior, equally and ratably with, or junior to, the Obligations or otherwise), such Permitted Refinancing Indebtedness may be secured by a Lien on the same property that secures the Indebtedness that is being Refinanced on terms no less favorable (including as to priority of such Lien), taken as a whole, to the Secured Parties than those contained in the documentation governing the Indebtedness being Refinanced, and to the extent the Obligations are secured by such property, shall be subject to an intercreditor agreement in form and substance substantially the same as the Intercreditor Agreement or reasonably acceptable to the Administrative Agent and the Collateral Agent and (f) if the Indebtedness being Refinanced is unsecured, such Permitted Refinancing Indebtedness shall be unsecured.
“Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, unlimited liability companies, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
“Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section 3(42) of ERISA, as amended from time to time.
“Polish Agreement for Civil and Registered Pledge over Bank Accounts” means any agreement for civil and registered pledge over bank accounts, executed by the European Collateral Agent as pledgee and the Polish Borrower and the Polish Guarantor respectively as pledgors.
“Polish Agreement for Civil and Registered Pledge over Intellectual Property Rights” means any agreement for civil and registered pledge over certain Intellectual Property rights of the Polish Borrower and the Polish Guarantor, executed by the Collateral Agent as pledgee and the Polish Borrower and the Polish Guarantor respectively as pledgors.
“Polish Agreement for Civil and Registered Pledge over Shares” means any agreement for civil and registered pledge over shares in the Polish Borrower and the Polish Guarantor, executed by the
Collateral Agent as pledgee and the shareholder(s) of the Polish Borrower and the Polish Guarantor respectively as pledgors.
“Polish Agreement for Registered Pledge over Assets” means any agreement for registered pledge over movable property and rights of the Polish Credit Parties respectively, executed by the European Collateral Agent as pledgee and the Polish Credit Parties respectively as pledgors.
“Polish Agreement for Registered Pledge over Inventories” means any agreement for registered pledge over Inventory located in certain locations in Poland, executed by the European Collateral Agent as pledgee and the Polish Credit Parties respectively as pledgors.
“Polish Borrower” as defined in the recitals hereto or any other Person added as a Polish Borrower in accordance with the terms hereof.
“Polish Borrowing Base” means, with respect to the Polish Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(e)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Polish Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(f)any applicable Reserve then in effect to the extent applicable to the Polish Borrower or such Eligible Receivables.
“Polish Civil Code” means the Polish Civil Code dated 23 April 1964, as amended.
“Polish Civil Procedure Code” means the Polish Civil Procedure Code dated 17 November 1964, as amended.
“Polish Commercial Companies Code” means the Polish Commercial Companies Code dated 15 September 2000, as amended.
“Polish Collateral Documents” means, collectively (i) each Polish Agreement for Civil and Registered Pledge over Bank Accounts; (ii) each Polish Agreement for Civil and Registered Pledge over Shares; (iii) each Polish Agreement for Civil and Registered Pledge over Intellectual Property Rights; (iv) each Polish Agreement for Registered Pledge over Inventories; (v) each Polish Security Assignment Agreement; (vi) each Polish Agreement for Registered Pledge over Assets; (vii) each Polish Declaration on Submission to Enforcement, and any other agreements, instruments, statements and documents executed in connection with this Agreement and the Agreed Security Principles that are intended to create, perfect or evidence security interest on assets of a Polish Credit Party to secure the Parallel Debt, including, without limitation, all other security agreements, powers of attorney, assignments, and financing statements, in each case now or hereafter executed by the Polish Credit Parties and delivered to the European Collateral Agent that are intended to create, perfect or evidence Liens on assets of a Polish Credit Party to secure the Parallel Debt.
“Polish Credit Party” means each Polish Borrower and each Polish Guarantor.
“Polish Declaration on Submission to Enforcement” means any declaration on voluntary submission to enforcement of the Polish Guarantor or the Polish Borrower respectively in favor of the European Collateral Agent in the form of notarial deed.
“Polish Guarantor” means any European Guarantor incorporated under the laws of Poland. “Polish Insolvency Event” means with respect to a Polish Credit Party: (i) no corporate action,
legal proceedings or other procedure or step is taken in relation to: (A) the suspension of payments or
declaration of bankruptcy (ogłoszenie upadłości) (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Polish Credit Party (other than a solvent reorganization and any transaction permitted under this Agreement); (B) a composition, compromise or arrangement with any creditor of the Polish Credit Party, including opening of restructuring proceedings (otwarcie postępowania restrukturyzacyjnego) in the form of postępowanie o zatwierdzenie układu, a przyspieszone postępowanie układowe, a postepowanie układowe, a postępowanie sanacyjne; (C) the appointment of a court receiver (syndyk), temporary court supervisor (tymczasowy nadzordca sądowy), compulsory manager (zarządca przymusowy) or other similar officer in respect of the Polish Credit Party or any of their assets in the bankruptcy proceedings pursuant to the Polish Insolvency Act; (D) the appointment of an arrangement supervisor (nadzorca układu), court supervisor (nadzorca sądowy), manager (zarządca) or other similar officer in respect of the Polish Credit Party or any of their assets in the restructuring proceedings pursuant to the Polish Restructuring Act; or (E) enforcement of any Collateral over any assets of the Polish Credit Party; (ii) no Person presents a petition for bankruptcy (wniosek o ogłoszenie upadłości) or an opening of the restructuring proceedings (wniosek o otwarcie postępowania restrukturyzacyjnego) of the Polish Credit Party; (iii) no liquidator (likwidator), judicial custodian (kurator sądowy), compulsory manager (zarządca przymusowy), administrator (zarządca), court receiver (syndyk), supervisor (nadzorca), court supervisor (nadzorca sądowy), arrangement supervisor (nadzorca układu), manager (zarządca), or similar officer is appointed in respect of the Polish Credit Party or any of their assets; (iv) no Polish Credit Party (A) is unable or admits inability to pay its debts as they fall due;
(B) has suspended making payments on any of its debts; or (C) has by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Secured Party acting in such capacity) with a view to rescheduling or restructuring any of its indebtedness.
“Polish Insolvency Law” means the Polish Insolvency Law dated 28 February 2003, as amended.
“Polish Outstandings” means, with respect to any Polish Borrower at any particular time, the principal amount of the Tranche C Loans made to such Polish Borrower outstanding at such time.
“Polish Restructuring Law” means the Polish Restructuring Law dated 15 May 2015, as amended.
“Polish Security Assignment Agreement” means any agreement for assignment of Accounts governed by the laws of Poland and any rights stemming from insurance policies governed by the laws of Poland, executed by the European Collateral Agent as assignee and the Polish Credit Parties respectively as assignors.
“Pounds Sterling” or “£” refers to the lawful currency of the United Kingdom. “Polish Zloty” refers to the lawful currency of Poland.
“PPSA” means the Personal Property Security Act (Ontario), as amended from time to time (or any successor statute) including the regulations and Minister’s orders thereto; provided that, if validity,
perfection or the effect of perfection or non-perfection or opposability or the priority of any Lien created hereunder on the Collateral is governed by the personal (movable) property security legislation or other applicable legislation with respect to personal (movable) property security in effect in a jurisdiction other than Ontario, “PPSA” means the Personal Property Security Act or such other applicable legislation (including, without limitation, the Civil Code of Quebec) in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such validity, perfection, effect of perfection or non-perfection or opposability or priority.
“Prime Rate” means (a) the rate of interest last quoted by The Wall Street Journal as the “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as determined by the Administrative Agent) or (b) in the case of ABR Loans to any Canadian Borrower, the base rate in effect at the office of JPMorgan Chase Bank, N.A. in Toronto, Canada for US Dollar-denominated commercial loans made in Canada. Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective. If the Prime Rate shall be less than the Floor, such rate shall be deemed to be the Floor for the purposes of this Agreement.
“Principal Office” means, for each of the Administrative Agent, the Swing Line Lender and each Issuing Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other office or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to the applicable Borrower, the Administrative Agent and each Lender.
“Priority Payable Reserves” means reserves for amounts which rank or are capable of ranking in priority to the Liens granted to the Applicable Collateral Agent to secure the Obligations, including, without limitation, in the Permitted Discretion of the Administrative Agent, any such amounts due and not paid for wages, vacation pay, severance pay, employee deductions, insolvency costs, amounts due and not paid under any legislation relating to workers’ compensation or to employment insurance amounts currently or past due and not paid for realty, municipal or similar taxes (to the extent impacting personal or movable property), sales tax and any other taxes and pension obligations.
“Proceeds” has the meaning given such term in the UCC.
“Pro Forma Basis” means, with respect to the Payment Conditions and for purposes of calculating compliance of any transaction with any provision hereof or any test which refers to a Pro Forma Basis, that the transaction in question (including any related Acquisition, Restricted Payments, sale of assets, incurrence, repayment, repurchase or redemption of Indebtedness (or any issuance, repurchase or redemption of Disqualified Stock or preferred stock), creation or incurrence of Liens, or other Investment and, in each case, payment of consideration therefor) shall be deemed to have occurred as of the first day of the Applicable Reference Period. In connection with any calculation of the Fixed Charge Coverage Ratio upon giving effect to a transaction on a “Pro Forma Basis”, (i) any Indebtedness incurred, repaid, repurchased, or redeemed by the Parent Borrower or any of its Subsidiaries in connection with such transaction (or any other transaction which occurred during the Reference Period or during the period from the last day of such period to and including the date of determination) shall be deemed to have been incurred or repaid, as the case may be, as of the first day of the Applicable Reference Period,
(ii) if such Indebtedness has a floating or formula rate, then the rate of interest for such Indebtedness for the applicable period for purposes of the calculations contemplated by this definition shall be determined by utilizing the rate which is or would be in effect with respect to such Indebtedness as at the relevant date of such calculations (giving consideration to any applicable rate “floor”), (iii) in the case of any
determination of the permissibility of the incurrence of Indebtedness, if such Indebtedness is revolving in nature, a borrowing of the maximum amount of loans available shall be assumed, (iv) in the case of any determination of the permissibility of the incurrence of Indebtedness, the cash proceeds of all such Indebtedness shall be disregarded in calculating the Fixed Charge Coverage Ratio, (v) income statement items (whether positive or negative) attributable to all property acquired in such transaction or to the Investment comprising such transaction, as applicable, shall be included as if such transaction has occurred as of the first day of the relevant four-fiscal-quarter period and (vi) without duplication of subclause (h) of the definition of “EBIT”, such calculation shall give effect to Synergies and Costs of Synergies resulting from or relating to the transaction in question and projected by the Parent Borrower in good faith to be realized by the Parent Borrower and its Subsidiaries subject, in any calculation of pro forma EBIT or EBITDA, to the applicable limitations on such Synergies and Costs of Synergies set forth in the definition of “EBIT”.
“Prohibition” as defined in Section 7.17(a).
“Property” of a Person means any and all property, whether real, personal, movable, immovable, tangible, intangible, or mixed, of such Person, or other assets owned, leased or operated by such Person.
“Proposed Extension” as defined in Section 2.23.
“Pro Rata Share” means
(a)with respect to all payments, computations and other matters relating to the Tranche A Revolving Commitment or Tranche A Loans of any Lender or any Tranche A Letters of Credit issued or participations purchased therein by any Lender or any participations in any Tranche A Swing Line Loans purchased by any Lender or any participations in any Tranche A Protective Advances purchased by any Lender, the percentage obtained by dividing (i) the Tranche A Revolving Commitment (or after the termination of the Tranche A Revolving Commitment, the Tranche A Revolving Credit Exposure) of that Lender by (ii) the aggregate Tranche A Revolving Credit Commitments (or after the termination of the Tranche A Revolving Commitment, the Tranche A Revolving Credit Exposure) of all Lenders;
(b)with respect to all payments, computations and other matters relating to the Tranche B Revolving Commitment or Tranche B Loans of any Lender, the percentage obtained by dividing (i) the Tranche B Revolving Commitment (or after the termination of the Tranche B Revolving Commitment, the Tranche B Revolving Credit Exposure) of that Lender by (ii) the aggregate Tranche B Revolving Credit Commitments (or after the termination of the Tranche B Revolving Commitment, the Tranche B Revolving Credit Exposure) of all Lenders;
(c)with respect to all payments, computations and other matters relating to the Tranche C Revolving Commitment or Tranche C Loans of any Lender, the percentage obtained by dividing (i) the Tranche C Revolving Commitment (or after the termination of the Tranche C Revolving Commitment, the Tranche C Revolving Credit Exposure) of that Lender by (ii) the aggregate Tranche C Revolving Credit Commitments (or after the termination of the Tranche C Revolving Commitment, the Tranche C Revolving Credit Exposure) of all Lenders; and
(d)with respect to all payments, computations and other matters relating to the Revolving Commitment generally, the percentage obtained by dividing (i) the Revolving Commitment (or after the termination of the Revolving Commitment, the Revolving Credit Exposure) of that Lender by (ii) the aggregate Revolving Commitments (or after the termination of the Revolving Commitment, the Revolving Credit Exposure) of all Lenders.
“Protective Advance” as defined in Section 2.24(a).
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
“QFC Credit Support” has the meaning assigned to it in Section 10.27.
“Qualification Period” means (i) in the case of New Jersey, Minnesota and such other states in which Account Debtors of a Borrower or any Guarantor Subsidiary are located on the Closing Date, within 30 days of the Closing Date (or such longer period as the Administrative Agent may agree) and (ii) in the case of such other states in which Account Debtors of a Borrower or any Guarantor Subsidiary are or become located after the Closing Date, within 30 days of the creation of such Account (or such longer period as the Administrative Agent may agree).
“Qualified Cash” means the aggregate amount of unrestricted cash and unrestricted Cash Equivalents of the US Borrower or the UK Borrower, as the context may require, that is in a deposit account located within the United States or England and Wales, as applicable, and subject to a First Priority perfected lien governed by the laws of the jurisdiction in which the deposit account is located and Deposit Account Control Agreement in favor of the Applicable Collateral Agent for the benefit of the Secured Parties at such time (provided that, prior to the deadline for Deposit Account Control Agreements set forth in clause (1) of the third proviso in Section 5.15(a), Qualified Cash shall include unrestricted cash and unrestricted Cash Equivalents of the US Borrower that is held in a deposit account located at JPMorgan Chase Bank, N.A. within the United States and subject to a First Priority perfected lien governed by the laws of the jurisdiction in which the deposit account is located); provided that the aggregate amount of Qualified Cash included in the US Borrowing Base and the UK Borrowing Base, collectively, shall not exceed $25,000,000.
“Recipient” as defined in Section 2.19(v).
“Reference Period” means each period of four consecutive fiscal quarters of the Parent Borrower.
“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is the Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two U.S. Government Securities Business Days preceding the date of such setting, (2) if such Benchmark is EURIBOR Rate, 11:00 a.m. Brussels time two TARGET Days preceding the date of such setting, (3) if the RFR for such Benchmark is SONIA, then four RFR Business Days prior to such setting, (4) if such Benchmark is the CDOR Rate, 10:15 a.m. (Toronto, Ontario time) on the date of such setting, or (5) if such Benchmark is none of the Term SOFR Rate, the EURIBOR Rate, SONIA or the CDOR Rate, the time determined by the Administrative Agent in its reasonable discretion.
“Refinancing” as defined in the recitals hereto. “Register” as defined in Section 2.6(b).
“Registered Exchange Offer” means a registered exchange of the Existing 2024 Notes held by holders that did not, or were not eligible to, participate in the 2024 Consent Solicitation and Exchange Offer for Units comprised of New 2L Notes and Warrants, on the terms contemplated for such Registered Exchange Offer in the TSA.
“Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.
“Regulation FD” means Regulation FD as promulgated by the US Securities and Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.
“Regulation T” means Regulation T of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Regulation X” means Regulation X of the Federal Reserve Board, as in effect from time to time and all official rulings and interpretations thereunder or thereof.
“Reimbursement Date” as defined in Section 2.3(h).
“Reimbursement Obligations” means, as and when matured, the obligation of the applicable Borrower to pay, on the date payment is made to the beneficiary under each such Letter of Credit (or at such other date as may be specified in the applicable Letter of Credit Reimbursement Agreement) and in the currency drawn (or in such other currency as may be specified in the applicable Letter of Credit Reimbursement Agreement), all amounts of each draft and other requests for payments drawn under applicable Letters of Credit, and all other matured reimbursement or repayment obligations of the applicable Borrower to any Issuing Bank with respect to amounts drawn under Letters of Credit.
“Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material) into the Environment or into, from or through any building or structure.
“Relevant Governmental Body” means (i) with respect to a Benchmark Replacement in respect of Loans denominated in Dollars, the Federal Reserve Board and/or the NYFRB, or a committee officially endorsed or convened by the Federal Reserve Board and/or the NYFRB or, in each case, any successor thereto, (ii) with respect to a Benchmark Replacement in respect of Loans denominated in Pounds Sterling, the Bank of England, or a committee officially endorsed or convened by the Bank of England or, in each case, any successor thereto, (iii) with respect to a Benchmark Replacement in respect of Loans denominated in Euros, the European Central Bank, or a committee officially endorsed or convened by the European Central Bank or, in each case, any successor thereto, and (iv) with respect to a Benchmark Replacement in respect of Loans denominated in any other currency, (a) the central bank for the currency in which such Benchmark Replacement is denominated or any central bank or other supervisor which is responsible for supervising either (1) such Benchmark Replacement or (2) the administrator of such Benchmark Replacement or (b) any working group or committee officially endorsed or convened by (1) the central bank for the currency in which such Benchmark Replacement is denominated, (2) any central bank or other supervisor that is responsible for supervising either (A) such Benchmark Replacement or (B) the administrator of such Benchmark Replacement, (3) a group of those central banks or other supervisors or (4) the Financial Stability Board or any part thereof.
“Relevant Rate” means, as applicable (i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Adjusted Term SOFR Rate, (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the Adjusted EURIBOR Rate, (iii) with respect to any RFR Borrowing denominated in Pounds Sterling or Dollars, the applicable Adjusted Daily Simple RFR or (iv) with respect to any Term Benchmark Borrowing denominated in Canadian Dollars, the CDOR Rate.
“Relevant Screen Rate” means, as applicable (i) with respect to any Term Benchmark Borrowing denominated in Dollars, the Term SOFR Reference Rate, (ii) with respect to any Term Benchmark Borrowing denominated in Euros, the EURIBOR Screen Rate or (iii) with respect to any Term Benchmark Borrowing denominated in Canadian Dollars, the CDOR Screen Rate.
“Remedial Action” means an action to address a Release or other violation of Environmental Laws required by any Environmental Law.
“Replacement Lender” as defined in Section 2.22.
“Report” means reports prepared by the Administrative Agent or another Person showing the results of appraisals, field examinations or audits pertaining to the assets of the Credit Parties from information furnished by or on behalf of the Borrowers, after the Administrative Agent has exercised its rights of inspection pursuant to this Agreement, which Reports may be distributed to the Lenders by the Administrative Agent.
“Reportable Event” means any “reportable event,” as defined in Section 4043(c) of ERISA, with respect to a Pension Plan other than those events as to which the 30-day notice period has been waived.
“Required Lenders” means one or more Lenders having or holding Revolving Commitments and Revolving Credit Exposure and representing more than 50% of the sum of the aggregate Revolving Credit Exposure of all Lenders.
“Reserves” means, effective as of two Business Days (provided that no Borrower shall be permitted to request any Credit Extensions during such two Business Day period) after the date of written notice of any determination thereof to the Parent Borrower by the Administrative Agent, without duplication of any other Reserves or items that are otherwise addressed or excluded through eligibility criteria or in other related borrowing base definitions, (i) such reserves as the Administrative Agent from time to time determines in its Permitted Discretion as being appropriate (a) to reflect any impediments to any Applicable Agent’s ability to realize upon the Collateral, (b) to reflect claims and liabilities that the Administrative Agent determines will need to be satisfied in connection with the realization upon the Collateral or (c) to reflect criteria, events, conditions, contingencies or risks which directly and adversely affect any component of any Borrowing Base; (ii) customary rent reserves, (iii) the Canadian Priority Payable Reserves, (iv) Dilution Reserves, (v) Priority Payable Reserves, (vi) Retention of Title Reserves,
(vii) reserves for fees payable to an insolvency administrator pursuant to Sec. 171 of the German Insolvency Code (Insolvenzordnung) (or relevant successor provisions) and (viii) any and all other reserves which the Administrative Agent deems necessary in its Permitted Discretion (including, without limitation, reserves against Accounts (x) subject to any extended or extendable retention of title claims by a supplier or vendor and (y) in respect of dilution).
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Restricted Indebtedness” as defined in Section 6.13.
“Restricted Payment” as defined in Section 6.12.
“Retained” means that legislation as it applies under English law, taking into account: (i) its having become part of English domestic law on and after 11pm (UK time) on 31 December 2020 (“IP completion day”) pursuant to the European Union (Withdrawal) Act 2018 (“EUWA”); and (ii) any modifications to it that have taken effect on or after IP completion day pursuant to the EUWA or otherwise under English law (but not, for the avoidance of doubt, any modifications to it that have taken effect on or after IP completion day under European Union law).
“Revaluation Date” means (a) with respect to any Loan denominated in any Alternative Currency, each of the following: (i) the date of the Borrowing of such Loan and (ii) (A) with respect to any Term Benchmark Loan, each date of a conversion into or continuation of such Loan pursuant to the terms of this Agreement and (B) with respect to any RFR Loan, each date that is on the numerically corresponding day in each calendar month that is one month after the Borrowing of such Loan (or, if there is no such numerically corresponding day in such month, then the last day of such month); (b) with respect to any Letter of Credit denominated in an Alternative Currency, each of the following: (i) each date of issuance of a Letter of Credit denominated in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the face amount thereof, (iii) each date of any payment by the applicable Issuing Bank under any Letter of Credit denominated in an Alternative Currency and (iv) such additional dates as the Administrative Agent or the applicable Issuing Bank shall determine or the Required Lenders shall require; and (c) any additional date as the Administrative Agent may determine in its discretion.
“Revolving Commitment” means the commitment of a Lender to make or otherwise fund any Tranche A Loan, Tranche B Loan and/or Tranche C Loan and to acquire participations in Tranche A Letters of Credit and Tranche A Swing Line Loans hereunder and “Revolving Commitments” means such commitments of all Lenders in the aggregate.
“Revolving Commitment Period” means the period from the Closing Date to but excluding the Revolving Commitment Termination Date.
“Revolving Commitment Termination Date” means the earliest to occur of (i) July 20, 2026;
(ii)the date the Revolving Commitments are permanently reduced to zero pursuant to Section 2.12;
(iii)the date of the termination of the Revolving Commitments pursuant to Section 8.1, and (iv) the date that is 91 days prior to the maturity date of any Indebtedness for borrowed money (other than the Existing 2023 Term Loans and the Existing 2024 Notes remaining outstanding on the Closing Date after giving effect to the Transactions) in an aggregate principal amount in excess of $25,000,000 incurred by the Parent Borrower or any of its Subsidiaries.
“Revolving Credit Exposure” means, with respect to any Lender as of any date of determination, the sum of (a) the aggregate outstanding principal amount of the Dollar Equivalent of the Loans of that Lender, (b) the aggregate amount of all participations by that Lender in any outstanding Tranche A Letters of Credit or any unreimbursed drawing under any Tranche A Letter of Credit, (c) in the case of a Lender that is a Tranche A Swing Line Lender, the aggregate outstanding principal amount of all Tranche A Swing Line Loans of such Lender (net of any participations therein actually funded by other Lenders), (d) the aggregate amount of all participations therein by that Lender in any outstanding Tranche A Swing Line Loans (other than any Tranche A Swing Line Loans made by such Lender in its capacity as a Tranche A Swing Line Lender) and (e) without duplication of clause (a), the aggregate amount of all participations therein by that Lender in any outstanding Tranche A Protective Advances.
“Revolving Credit Facility” means the Revolving Commitments and the provisions herein related to the Tranche A Loans, Tranche B Loans, Tranche C Loans, Tranche A Swing Line Loans, Tranche A Letters of Credit, and Tranche A Protective Advances.
“Revolving Credit Outstandings” means the Tranche A Revolving Credit Outstandings, the Tranche B Revolving Credit Outstandings and/or the Tranche C Revolving Credit Outstandings, as the case may be.
“Revolving Loan” means the Tranche A Loans, the Tranche B Loans and/or the Tranche C
Loans.
“Revolving Loan Note” means a promissory note in the form of Exhibit B-1, as it may be amended, supplemented or otherwise modified from time to time.
“RFR” means, for any RFR Loan denominated in (a) Pounds Sterling, SONIA and (b) Dollars, Daily Simple SOFR.
“RFR Borrowing” means, as to any Borrowing, the RFR Loans comprising such Borrowing. “RFR Business Day” means, for any Loan denominated in (a) Pounds Sterling, any day except
for (i) a Saturday, (ii) a Sunday or (iii) a day on which banks are closed for general business in London and (b) Dollars, a U.S. Government Securities Business Day.
“RFR Interest Day” has the meaning specified in the definition of “Daily Simple RFR”.
“RFR Loan” means a Loan that bears interest at a rate based on the Adjusted Daily Simple RFR. “S&P” means Standard & Poor's Ratings Services, a Standard & Poor’s Financial Services LLC
business.
“Sale and Leaseback Transaction” means any sale or other transfer of property by any Person with the intent to lease or use such Property as lessee or in any other similar capacity (but excluding, for the avoidance of doubt, any sale and leaseback of inventory or equipment that is subleased or otherwise leased directly or indirectly to any customer of the Parent Borrower or a Subsidiary).
“Sanctioned Country” means, at any time, a country, region or territory which is itself the subject or target of any Sanctions (at the time of this Agreement, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the Crimea, Kherson, and Zaporizhzhia Regions of Ukraine, Cuba (other than with respect to a Canadian Credit Party), Iran, North Korea, and Syria).
“Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury, or the U.S. Department of State, the Government of Canada, the United Nations Security Council, the European Union, any European Union member state, HM’s Treasury of the United Kingdom or other relevant sanctions authority, (b) any Person operating, organized or resident in a Sanctioned Country, (c) any Person owned or controlled by any such Person or Persons described in the foregoing clauses (a) or (b), or (d) any Person otherwise the subject of any Sanctions, including any Canadian Blocked Person.
“Sanctions” means all economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the Office of
Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, (b) the Government of Canada (including the Canadian Economic Sanctions and Export Control Laws) or (c) the United Nations Security Council, the European Union, any European Union member state, Switzerland (including the State Secretariat for Economic Affairs of Switzerland (SECO) and/or the Swiss Directorate of International Law (DIL)), HM’s Treasury of the United Kingdom or other relevant sanctions authority.
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions or any comparable agency in any applicable non-U.S. jurisdiction.
“Secured Parties” means, collectively, the Lenders, the Issuing Banks, the Agents, each Approved Counterparty and each other holder of an Obligation.
“Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Account” has the meaning given to such term in the UCC.
“Securities Account Control Agreement” has the meaning specified in the Security Agreement. “Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.
“Securities Intermediary” means a “securities intermediary” or “commodity intermediary” as such terms are defined in the UCC.
“Security Agreement” means an agreement, substantially in the form of Exhibit I-1, as it may be amended, supplemented or otherwise modified from time to time, executed by the Parent Borrower and each other US Guarantor.
“SOFR” means a rate per annum equal to the secured overnight financing rate as administered by the SOFR Administrator.
“SOFR Administrator” means the NYFRB (or a successor administrator of the secured overnight financing rate).
“SOFR Administrator’s Website” means the NYFRB’s website, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
“SOFR Determination Date” has the meaning specified in the definition of “Daily Simple
SOFR”.
“SOFR Rate Day” has the meaning specified in the definition of “Daily Simple SOFR”.
“Solvency Certificate” means a Solvency Certificate of the chief financial officer of each Borrower substantially in the form of Exhibit G-2.
“SONIA” means, with respect to any Business Day, a rate per annum equal to the Sterling Overnight Index Average for such Business Day published by the SONIA Administrator on the SONIA Administrator’s Website on the immediately succeeding Business Day.
“SONIA Administrator” means the Bank of England (or any successor administrator of the Sterling Overnight Index Average).
“SONIA Administrator’s Website” means the Bank of England’s website, currently at http://www.bankofengland.co.uk, or any successor source for the Sterling Overnight Index Average identified as such by the SONIA Administrator from time to time.
“Spanish Borrower” means Diebold Nixdorf S.L., or any other Person added as a Spanish Borrower in accordance with the terms hereof.
“Spanish Borrowing Base” means, with respect to the Spanish Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(g)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Spanish Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(h)any applicable Reserve then in effect to the extent applicable to the Spanish Borrower or such Eligible Receivables.
“Spanish Civil Code” means the Spanish Civil Code published by virtue of the Royal Decree of 24 July 1889 (Real decreto de 24 de julio de 1889 por el que se publica el Código Civil), as amended from time to time.
“Spanish Civil Procedural Law” means Law 1/2000 of 7 January (Ley de Enjuiciamiento Civil), as amended from time to time.
“Spanish Commercial Code” means the Spanish Commercial Code published by virtue of the Royal Decree of 22 August 1885 (Real decreto de 22 de agosto de 1885 por el que se publica el Código de Comercio), as amended from time to time.
“Spanish Companies Law” means the Royal Legislative Decree 1/2010, of 2 July, whereby the companies act is approved (Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital), as amended from time to time.
“Spanish Collateral Documents” means each pledge over the credit rights arising from bank accounts opened in Spain by any Credit Party, pledge over credit rights arising in favor of any Credit Party from any agreement governed by Spanish law, non-possessory pledge over Inventory located in Spain, and any other security document or financial collateral agreement (garantía financiera pignoraticia) governed by Spanish law pursuant to this Agreement or any of the other Credit Documents and the Agreed Security Principles in order to grant to Secured Parties a Lien on real, personal or mixed property of any Borrower or Guarantor located in Spain as security for the Obligations and in form and substance reasonably satisfactory to the European Collateral Agent and the Administrative Agent, jointly
with any document, notice or irrevocable power of attorney ancillary to such Spanish Collateral Document.
“Spanish Credit Party” means each Spanish Borrower and each Spanish Guarantor. “Spanish Guarantor” means any European Guarantor incorporated under the laws of Spain.
“Spanish Insolvency Event” means in respect of a Spanish Credit Party any insolvency or insolvency proceeding where such person is unable to pay its debts and that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law, including a declaración de concurso con independencia de su carácter necesario o voluntario as well as any solicitud de inicio del procedimiento de concurso voluntario, the request of declaration of insolvency by a third party (solicitud de concurso por acreedores) (including without limitation, any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, petition to appoint a restructuring expert pursuant to articles 672 et seq., and its solicitud de inicio de procedimiento de concurso, auto de declaración de concurso, convenio judicial o extrajudicial con acreedores and transacción extrajudicial).
“Spanish Insolvency Law” means the Royal Legislative Decree 1/2020, of 5 May, approving the Consolidated Text of the Spanish Insolvency Law (Real Decreto-Legislativo 1/2020, de 5 de mayo, por el que se aprueba el Texto Refundido de la Ley Concursal), as amended from time to time and, in particular but not limited to, pursuant to the Spanish Law 16/2022, of 5 September, amending the consolidated text of the Spanish Insolvency Law (Ley 16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal).
“Spanish Joinder Agreement” means the joinder agreement substantially in the form of Exhibit O executed by Diebold Nixdorf S.L., the Secured Parties, the Administrative Agent and the European Collateral Agent on the Closing Date.
“Spanish Lender” means a Lender which is:
(a)a Spanish-resident financial entity (entidad de crédito o establecimiento financiero de crédito) to which paragraph (c) of article 61 of the Corporate Income Tax Regulations approved by the Royal Decree 634/2015 on 10 July (Real Decreto 634/2015, de 10 de julio, por el que se aprueba el Reglamento del Impuesto sobre Sociedades), as amended or restated, apply;
(b)a Spanish permanent establishment of a non-Spanish financial entity, that is registered with the Bank of Spain and to which the second paragraph of article 8.1 of the Non Resident Income Tax Regulations approved by the Royal Decree 1776/2004 on 30 July 2004 (Real Decreto 1776/2004, de 30 de julio de 2004, por el que se aprueba el Reglamento del Impuesto sobre la Renta de no Residentes), as amended or restated, apply; or
(c)a Spanish-resident securitization fund to which paragraph (k) of article 61 of the Corporate Income Tax Regulations approved by the Royal Decree 634/2015 on 10 July (Real Decreto 634/2015, de 10 de julio, por el que se aprueba el Reglamento del Impuesto sobre Sociedades), as amended or restated, apply.
“Spanish Outstandings” means, with respect to any Spanish Borrower at any particular time, the principal amount of the Tranche C Loans made to such Spanish Borrower outstanding at such time.
“Spanish Public Document” means a Spanish law notarial deed (documento público), being either an escritura pública or a póliza o efecto intervenido por notario español.
“Spanish Tax Qualifying Lender” means, in respect of a payment by or in respect of a Spanish Borrower, a Lender which is beneficially entitled to interest payable by a Spanish Borrower to that Lender in respect of an advance under a Credit Document and is:
(a)a Spanish Lender;
(b)a Spanish Treaty Lender; or
(c)tax resident in a member state of the European Union, other than Spain, or of the European Economic Area, acting directly or through a permanent establishment of such European Union or European Economic Area resident located in another Member State of the European Union (other than Spain) or in the European Economic Area, to which the income obtained is effectively connected, provided that it does not obtain the income through a territory considered to be a tax haven for Spanish Tax purposes (in accordance with the Royal Decree 1080/1991, of 5 July (Real Decreto 1080/1991, de 5 de julio), and paragraphs 1 and 2 of the First Additional Provision of Law 36/2006, of 29 November (Disposición Adicional Primera de la Ley 36/2006, de 29 de noviembre), as amended or restated, or through a member state of the European Economic Area not having an effective exchange of tax information agreement with Spain in force.
“Spanish Treaty Lender” means in relation to a payment of interest by or in respect of a Spanish Borrower under a Credit Document, a Lender which:
(a)is treated as a resident of a Spanish Treaty State for the purposes of the relevant Spanish Treaty;
(b)does not carry on a business in Spain through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and
(c)fulfils any other conditions which must be fulfilled under the relevant Spanish Treaty in order to benefit from full exemption from Tax imposed by Spain on interest including the completion of any necessary procedural formalities.
“Spanish Treaty State” means a jurisdiction having a double tax agreement (the Spanish Treaty) with Spain which makes provision for full exemption for Tax imposed by Spain on interest payments.
“Specified Availability” means, at any time, the sum of (a) (i) the Line Cap minus (ii) the aggregate of all Revolving Credit Outstandings, (b) the aggregate amount of unrestricted cash and unrestricted Cash Equivalents (other than any Qualified Cash included in the foregoing clause (a)) of the US Borrower that is held in a deposit account located at JPMorgan Chase Bank, N.A. within the United States and subject to a First Priority perfected lien governed by the laws of the jurisdiction in which the deposit account is located; provided that the aggregate amount of cash and Cash Equivalents included in this clause (b) shall only be included in Specified Availability if the amount exceeds $10,000,000 and (c) such additional amount of unrestricted cash and unrestricted Cash Equivalents (other than any Qualified Cash included in the foregoing clause (a)) of the UK Borrower that is held in a deposit account located within England and Wales that is subject to a perfected lien governed by the laws of the jurisdiction in which the deposit account is located; provided that the aggregate amount of cash and Cash Equivalents
included in this clause (c) shall only be included in Specified Availability if the amount exceeds
$10,000,000; provided further that if at any time during the Specified Availability Period, Excess Availability is less than $18,000,000, then Specified Availability will be deemed to be less than Excess Availability for all purposes of this Agreement.
“Specified Availability Period” means the period beginning on the Closing Date and ending on the date that is 30 days after the Closing Date (or such later date as the Administrative Agent may agree up to the date that is 60 days after the Closing Date).
“Specified Borrowing Base” means the sum of (i) the Italian Borrowing Base plus (ii) the Swedish Borrowing Base plus (iii) the Polish Borrowing Base; provided that, notwithstanding the foregoing, in no event shall the Specified Borrowing Base exceed 10% of the Global Borrowing Base.
“Specified Foreign Jurisdictions” means Germany, Canada, Belgium, France, England and Wales, Sweden, Spain, Poland, Italy and the Netherlands.
“Specified Foreign Subsidiary” means each Subsidiary organized under the laws of a Specified Foreign Jurisdiction.
“Specified Intercompany Claims” means, collectively, (i) that certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to the Parent Borrower (the amount of which, as of the Closing Date, is approximately €656,000,000) and (ii) that certain intercompany claim owed by Diebold Nixdorf Holding Germany GmbH to Diebold Nixdorf Dutch Holding B.V. (the amount of which, as of the Closing Date, is approximately €343,000,000).
“Statutory Reserve Rate” 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 percentage (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Federal Reserve Board to which the Administrative Agent is subject with respect to the Adjusted EURIBOR Rate, as applicable, for eurocurrency funding (currently referred to as “Eurocurrency liabilities” in Regulation D) or any other reserve ratio or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Loans. Such reserve percentage shall include those imposed pursuant to Regulation D. Term Benchmark Loans for which the associated Benchmark is adjusted by reference to the Statutory Reserve Rate (per the related definition of such Benchmark) shall be deemed to constitute eurocurrency funding 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 any Lender under Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.
“Stock Certificates” means Collateral consisting of stock certificates representing Capital Stock (or partnership interests) of the Subsidiaries of the Parent Borrower for which a security interest can be perfected by delivering such Stock Certificates, together with undated stock powers executed in blank with respect thereto.
“Subject Party” as defined in Section 2.19(v).
“Subordinated Indebtedness” means any Indebtedness of the Parent Borrower or any Subsidiary that is by its terms contractually subordinated in right of payment to any of the Obligations.
“Subordination Agreement” means a subordination agreement substantially in the form of Exhibit F or any other form approved by the Administrative Agent and the Company.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, unlimited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; provided in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interest in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of Parent Borrower. In relation to a French company, “subsidiary” shall mean an entity over which such French company has from time to time direct or indirect control (as defined in article L.233-3 I, 1° and 2° of the French Commercial Code).
“Substantial Portion” means, with respect to the Property of the Parent Borrower and its Subsidiaries, Property which (a) represents consolidated assets in excess of $726,850,000 or (b) is responsible for consolidated net sales in excess of $887,880,000.
“Supermajority Revolving Lenders” means, at any time, Lenders (other than Defaulting Lenders) having Revolving Credit Exposures and unused Revolving Commitments representing at least 66.7% of the sum of the aggregate Revolving Credit Exposure and unused Revolving Commitments at such time.
“Superpriority Term Loan Agreement” means that certain credit agreement, dated as of the Closing Date, among the Company, Diebold Nixdorf Holding Germany GmbH, as the borrower, the GLAS USA LLC, in its capacity as the administrative agent (or any successor representative acting in such capacity), GLAS Americas LLC, in its capacity as the collateral agent (or any successor representative acting in such capacity), and the lenders parties thereto from time to time, as amended and as the same may be further amended, restated, modified or refinanced in whole or in part from time to time.
“Superpriority Term Loans” means the loans made to Diebold Nixdorf Holding Germany GmbH pursuant to the Superpriority Term Loan Agreement.
“Supported QFC” has the meaning assigned to it in Section 10.27.
“Supplier” as defined in Section 2.19(v).
“Swap” means any agreement, contract, or transaction that constitutes a “swap” within the meaning of section 1a(47) of the Commodity Exchange Act.
“Swap Contract” means collectively, each Interest Rate Agreement, each Currency Agreement and each Commodity Swap Agreement.
“Swap Obligation” means, with respect to any Credit Party, any obligation to pay or perform under any Swap.
“Swap Termination Value” means, in respect of any Swap Contract after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contract, (a) for any date on or
after the date such Swap Contract has been closed out and a termination value determined in accordance therewith, such termination value, and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value for such Swap Contract, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contract (which may include any Agent or any Lender).
“Swedish Borrower” as defined in the recitals hereto or any other Person added as a Swedish Borrower in accordance with the terms hereof.
“Swedish Borrowing Base” means, with respect to the Swedish Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(a)the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the Swedish Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(b)any applicable Reserve then in effect to the extent applicable to the Swedish Borrower or such Eligible Receivables.
“Swedish Collateral Documents” means (i) a Swedish law governed security agreement regarding a pledge over certain receivables owed to a Swedish Borrower from time to time, (ii) a Swedish law governed security agreement regarding a pledge over one or several bank accounts held by a Swedish Borrower, and (iii) a Swedish law governed security agreement regarding a corporate mortgage (Sw. företagshypotek) over all assets of such Swedish Borrower from time to time being subject to certain corporate mortgage registration(s) (Sw. företagsinteckning(ar)) pursuant to the Corporate Mortgage Act (Sw. lag (2008:990) om företagshypotek), and any other agreements, instruments and documents governed by the laws of Sweden executed in connection with this Agreement and the Agreed Security Principles that are intended to create, perfect or evidence Liens to secure the Obligations, as the same may be amended, restated or otherwise modified from time to time.
“Swedish Credit Party” means each Swedish Borrower and each Swedish Guarantor. “Swedish Guarantor” means any European Guarantor incorporated under the laws of Sweden.
“Swedish Insolvency Event” means, in respect of any Swedish Credit Party, it (i) (A) is unable or admits inability to pay its debts as they fall due, (B) is deemed to, or is declared to, be unable to pay its debts under applicable law, (C) suspends or threatens to suspend making payments on any of its debts, or by reason of actual financial difficulties, commences negotiations with one or more of its creditors (excluding any Secured Party in its capacity as such) with a view to rescheduling any of its indebtedness, and (ii) the board of directors of a Swedish Credit Party is under a statutory obligation to liquidate that Swedish Credit Party due to capital deficiency (Sw. kapitalbrist).
“Swedish Krona” refers to the lawful currency of Sweden.
“Swedish Lender Tax Certificate” means a confirmation by a Lender to a Swedish Borrower that it meets the requirements to be a Swedish Treaty Lender, together with a tax residence certificate issued by the competent authority or tax authority that the Lender is treated as a resident in the relevant Swedish Treaty State for the purposes of the relevant Swedish Treaty.
“Swedish Outstandings” means, with respect to any Swedish Borrower at any particular time, the principal amount of the Tranche C Loans made to such Swedish Borrower outstanding at such time.
“Swedish Tax Qualifying Lender” means in relation to a payment made by a Swedish Borrower under a Credit Document, a Lender which is beneficially entitled to interest payable to that Lender in respect of an advance to a Swedish Borrower under a Credit Document and is: (i) a Lender which fulfils the conditions imposed by the laws of Sweden in force as at the date of this Agreement in order for a payment under a Credit Document not to be subject to (or, as the case may be, to be exempt from) any Tax Deduction for or on account of Tax imposed by Swedish law; or (ii) a Swedish Treaty Lender.
“Swedish Treaty Lender” means in relation to a payment by a Swedish Borrower under a Credit Document, a Lender which is: (i) is treated as a resident of a Swedish Treaty State for the purposes of the relevant Swedish Treaty; (ii) does not carry on business in Sweden through a permanent establishment with which that Lender's participation in the Loan is effectively connected; and (iii) has fulfilled any other conditions which must be fulfilled under the relevant Swedish Treaty by residents of the relevant Swedish Treaty State for such residents to obtain the full exemption from Tax imposed by Sweden on interest payments made by a Swedish Borrower under a Credit Document, including completion of any necessary procedural formalities.
“Swedish Treaty State” means jurisdictions having a double taxation agreement (a “Swedish Treaty” in force with Sweden which makes provision for full exemption from Tax imposed by Sweden on interest.
“Swing Line Lender” means the Tranche A Swing Line Lender. “Swing Line Loan” means the Tranche A Swing Line Loans.
“Swing Line Loan Sublimit” means the Tranche A Swing Line Loan Sublimit.
“Swing Line Note” means a promissory note in the form of Exhibit B-2, as it may be amended, supplemented or otherwise modified from time to time.
“Swing Line Request” as defined in Section 2.2(b).
“Swiss Borrower” as defined in the recitals hereto or any other Person incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to article 9 of the Swiss Withholding Tax Act added as a Swiss Borrower in accordance with the terms hereof.
“Swiss Insolvency Event” means each of “Zahlungsunfähigkeit” (inability to pay its debts), “Zahlungseinstellung” (suspending making payments), “hälftiger Kapitalverlust” or “Überschuldung” within the meaning of art. 725 and art. 820 para. 1 of the Swiss Code of Obligations (CO) (half of the share capital and the legal reserves not covered; over-indebtedness, i.e. liabilities not covered by the assets), duty of filing of the balance sheet with the judge due to over-indebtedness or insolvency pursuant to art. 725a and art. 820 para. 1 CO, “Konkurseröffnung und Konkurs” (declaration of bankruptcy and bankruptcy), “Nachlassverfahren” (composition with creditors) including in particular “Nachlassstundung” (moratorium) and proceedings regarding “Nachlassvertrag” (composition agreements) and “Notstundung” (emergency moratorium), proceedings regarding Fälligkeitsaufschub (postponement of maturity), “Konkursaufschub / Gesellschaftsrechtliches Moratorium” (postponement of the opening of bankruptcy; moratorium proceedings) pursuant to art. 725a or art. 820 para. 2 CO,
notification of the judge of a capital loss or over-indebtedness under these provisions and “Auflösung / Liquidation” (dissolution/liquidation).
“Swiss Insolvency Law” means the means the Swiss Debt Collection and Bankruptcy Act of 11 April 1889 (Bundesgesetz über Schuldbetreibung und Konkurs vom 11. April 1889 (SR 281.1)).
“Swiss Joint and Several Guarantee Act” means the Covid-19 Joint Guarantee Act Swiss Federal Act on Credits with Joint Guarantees of 18 December 2020 (Bundesgesetz vom 18. Dezember 2020 über Kredite mit Solidarbürgschaft infolge des Coronavirus (SR 951.2)).
“Swiss Non-Bank Rules” means the Swiss Ten Non-Bank Rule and the Swiss Twenty Non-Bank
Rule.
“Swiss Non-Qualifying Bank” means any Person which does not qualify as a Swiss Qualifying
Bank.
“Swiss Outstandings” means, with respect to any Swiss Borrower at any particular time, the principal amount of the Tranche C Loans made to such Swiss Borrower outstanding at such time.
“Swiss Qualifying Bank” means any legal entity which is recognized as a bank by the banking laws in force in its country of incorporation, or if acting through a branch, in the country of that branch, and which exercises as its main purpose a true banking activity, having bank personnel, premises, communication devices of its own and the authority of decision-making and has a genuine banking activity, in each case, in accordance with the meaning of the Guidelines or legislation or explanatory notes addressing the same issues which are in force at such time.
“Swiss Ten Non-Bank Rule” means the rule that the aggregate number of creditors of a Swiss Borrower under a Loan to such Swiss Borrower pursuant to this Agreement which are not Swiss Qualifying Banks must not at any time exceed ten, all in accordance with the Guidelines.
“Swiss Twenty Non-Bank Rule” means the rule that the aggregate number of creditors other than Swiss Qualifying Banks of a Swiss Borrower under all outstanding debts relevant for the classification as debenture (Kassenobligation) (including intragroup loans, facilities or private placements (including Loans pursuant to this Agreement)) must not at any time exceed twenty, all in accordance with the Guidelines or legislation or explanatory notes addressing the same issues which are in force at such time.
“Swiss Withholding Tax” means the Swiss withholding tax as per the Swiss Withholding Tax
Act.
“Swiss Withholding Tax Act” means the Swiss Federal Act on the Withholding Tax of 13 October 1965 (Bundesgesetz über die Verrechnungssteuer), together with the related ordinances, regulations and guidelines, all as amended and applicable from time to time.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system which utilizes a single shared platform and which was launched on November 19, 2007.
“TARGET Day” means any day on which TARGET2 (or, if such payment system ceases to be operative, such other payment system, if any, determined by the Administrative Agent to be a suitable replacement) is open for the settlement of payments in Euro.
“Tax” means any present or future tax, levy, impost, duty, assessment, charge, fee, deduction or withholding of any nature and whatever called, imposed by any Governmental Authority, including any interest, additions to tax and penalties applicable thereto.
“Tax Act” means the Income Tax Act (Canada), as amended.
“Tax Deduction” shall mean a deduction or withholding for or on account of Non-Excluded Taxes or Other Taxes from a payment under the Credit Documents.
“Tax Indemnitee” as defined in Section 2.19(m).
“TEG Letter” has the meaning set forth in Section 2.7(i).
“Term Benchmark” 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 Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the CDOR Rate.
“Term Loan Exchange” has the meaning given to such term in the TSA.
“Term SOFR Determination Day” has the meaning assigned to it under the definition of Term SOFR Reference Rate.
“Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated in Dollars and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Local Time, two (2) U.S. Government Securities Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. If by 5:00 pm (New York City time) on such Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator and a Benchmark Replacement Date with respect to the Term SOFR Rate has not occurred, then, so long as such day is otherwise a U.S. Government Securities Business Day, the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding U.S. Government Securities Business Day is not more than five (5) U.S. Government Securities Business Days prior to such Term SOFR Determination Day.
“Terminated Lender” as defined in Section 2.22.
“Total Assets” means the total assets of the Parent Borrower and its Subsidiaries, determined in accordance with GAAP.
“Total Commitments” means the sum of the Tranche A Revolving Commitments, the Tranche B Revolving Commitments and the Tranche C Revolving Commitments.
“Total Debt” as of any date, means all of the following for the Parent Borrower and its Subsidiaries on a consolidated basis and without duplication: (i) all debt for borrowed money and similar
monetary obligations evidenced by bonds, notes, debentures, Finance Lease Obligations or otherwise, including without limitation obligations in respect of the deferred purchase price of properties or assets, in each case whether direct or indirect (other than accounts payable and/or accrued expenses and commercial Letters of Credit with respect to the foregoing, in each case arising in the ordinary course of such Person’s business payable in accordance with customary practices); (ii) all reimbursement obligations under outstanding Letters of Credit (other than commercial Letters of Credit referenced in clause (i) above or Letters of Credit that are 100% cash collateralized) in respect of drafts which (A) may be presented (other than performance or standby Letters of Credit) or (B) have been presented and have not yet been paid and are not included in clause (i) above; (iii) all Off-Balance Sheet Liabilities; (iv) all Guarantee Obligations of indebtedness or liabilities of the type described in clauses (i), (ii) or (iii) above and (v) all obligations of the kind referred to in the foregoing clauses (i), (ii), (iii) or (iv) secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on property (including accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation, provided that, if such Person has not assumed such obligations, then the amount of debt of such Person for purposes of this clause (v) shall be equal to the lesser of the amount of the obligations of the holder of such obligations and the fair market value of the assets of such Person which secure such obligations. Notwithstanding the foregoing, each of the following shall be excluded from, and not considered part of, Total Debt: (1) money borrowed by the Parent Borrower against the cash value of life insurance policies owned by the Parent Borrower; (2) Indebtedness consisting of avals by any of the Parent Borrower’s Subsidiaries for the benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the Parent Borrower’s other Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices; and (3) Indebtedness permitted under Section 6.7(p).
“Total Shared Borrowing Base” means, at any time of determination, an amount equal to the US Borrowing Base less the US Outstandings less the Swiss Outstandings less the aggregate amount by which each Foreign Borrower have received Credit Extensions in excess of each Foreign Borrower’s own Borrowing Base.
“Tranche” with respect to any Revolving Commitment, refers to whether such Revolving Commitment is a Tranche A Revolving Commitment, a Tranche B Revolving Commitment or a Tranche C Revolving Commitment and, with respect to any Loan, refers to whether such Loan is made pursuant to the Tranche A Revolving Commitments, pursuant to the Tranche B Revolving Commitments or pursuant to the Tranche C Revolving Commitments.
“Tranche A Available Credit” means, at any time, the lesser of (i) the then effective Tranche A Revolving Commitments and (ii) (A) in the case of a Credit Extension to a US Borrower, the Total Shared Borrowing Base at such time and (B) in the case of a Credit Extension to the Canadian Borrower only, Total Shared Borrowing Base plus an amount equal to the greater of (x) the Canadian Borrowing Base of such Borrower, minus the Canadian Outstandings of such Borrower; and (y) zero.
“Tranche A Borrowers” means the US Borrower and the Canadian Borrower.
“Tranche A Borrowing Conditions” has the meaning given to the term in Section 2.1(a).
“Tranche A Lender” means any Lender having a Tranche A Revolving Commitment.
“Tranche A Letter of Credit” means each standby letter of credit issued by any Issuing Bank to the Parent Borrower pursuant to this Agreement.
“Tranche A Letter of Credit Obligations” means, at any time, the aggregate of all liabilities at such time of the US Borrower to all Issuing Banks with respect to Tranche A Letters of Credit, whether or not any such liability is contingent, including, without duplication, the Tranche A Letter of Credit Usage at such time.
“Tranche A Letter of Credit Reimbursement Agreement” as defined in Section 2.3(a)(vi).
“Tranche A Letter of Credit Sublimit” means the lesser of (i) $50,000,000 and (ii) the aggregate unused amount of the Revolving Commitments then in effect. The Tranche A Letter of Credit Sublimit of each individual Issuing Bank as of the Closing Date is set forth on Appendix C hereto.
“Tranche A Letter of Credit Undrawn Amounts” means, at any time, the aggregate undrawn face amount of all Tranche A Letters of Credit outstanding at such time.
“Tranche A Letter of Credit Usage” means, as at any date of determination, the sum of (i) the Tranche A Letter of Credit Undrawn Amounts at such time and (ii) the outstanding Reimbursement Obligations with respect to Tranche A Letters of Credit at such time.
“Tranche A Loan” as defined in Section 2.1(a)(i), together with any Tranche A Protective Advances.
“Tranche A Maximum Credit” means, at any time, the lesser of (i) the Tranche A Revolving Commitments in effect at such time and (ii) the sum of the US Borrowing Base and the Canadian Borrowing Base, in each case at such time.
“Tranche A Protective Advance” as defined in Section 2.24(a).
“Tranche A Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Tranche A Loans and to acquire participations in Tranche A Letters of Credit, Tranche A Swing Line Loans and Tranche A Protective Advances hereunder, expressed as an amount representing the maximum aggregate amount of such Lender’s Tranche A Revolving Credit Outstandings hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.12 and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section
10.6. The initial amount of each Lender’s Tranche A Revolving Commitment as of the Closing Date is set forth on Appendix A, or the Assignment Agreement pursuant to which such Lender shall have assumed its Tranche A Revolving Commitment, as applicable. The aggregate amount of the Tranche A Revolving Commitments as of the Closing Date is $155,000,000.00.
“Tranche A Revolving Credit Exposure” means, with respect to any Lender as of any date of determination, the sum of (a) the aggregate outstanding principal amount of the Dollar Equivalent of the Tranche A Loans of that Lender, (b) the aggregate amount of all participations by that Lender in any outstanding Tranche A Letters of Credit or any unreimbursed drawing under any Tranche A Letter of Credit, (c) in the case of a Lender that is a Tranche A Swing Line Lender, the aggregate outstanding principal amount of all Tranche A Swing Line Loans of such Lender (net of any participations therein actually funded by other Lenders), (d) the aggregate amount of all participations therein by that Lender in any outstanding Tranche A Swing Line Loans (other than any Tranche A Swing Line Loans made by such Lender in its capacity as a Tranche A Swing Line Lender) and (e) without duplication of clause (a), the aggregate amount of all participations therein by that Lender in any outstanding Tranche A Protective Advances.
“Tranche A Revolving Credit Outstandings” means, at any particular time, the sum of (a) the principal amount of the Tranche A Loans outstanding at such time, (b) the Tranche A Letter of Credit Usage outstanding at such time and (c) the principal amount of the Tranche A Swing Line Loans outstanding at such time.
“Tranche A Swing Line Lender” means (i) JPMorgan in its capacity as Tranche A Swing Line Lender hereunder and (ii) any other Lender reasonably acceptable to the Administrative Agent and the Parent Borrower who agrees to become a Tranche A Swing Line Lender and to be bound by the terms hereof applicable to Tranche A Swing Line Lenders pursuant to an agreement with, and in form and substance reasonably satisfactory to, the Administrative Agent and the Parent Borrower, in each case together with its permitted successors and assigns in such capacity.
“Tranche A Swing Line Loan” as defined in Section 2.2(a).
“Tranche A Swing Line Sublimit” means the lesser of (i) $50,000,000, and (ii) in respect of an applicable Borrower, that Borrower’s Tranche A Available Credit then in effect.
“Tranche B Available Credit” means, at any time, the lesser of (i) the then effective Tranche B Revolving Commitments and (ii) (A) in the case of a Credit Extension to a US Borrower, the Total Shared Borrowing Base; (B) in the case of a Credit Extension to a French Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the French Borrowing Base of such Borrower, minus the French Outstandings of such Borrower; and (y) zero; and (C) in the case of a Credit Extension to an Italian Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the Italian Borrowing Base of such Borrower minus the Italian Outstandings of such Borrower; and (y) zero; provided that, notwithstanding the foregoing, in determining the Tranche B Available Credit, (i) in no event shall the European Borrowing Base exceed 50% of the Global Borrowing Base and (ii) in no event shall the Specified Borrowing Base exceed 10% of the Global Borrowing Base.
“Tranche B Borrowers” means (i) as of the Closing Date, each French Borrower and Italian Borrower and (ii) the US Borrower, solely on and after the date on which (x) the Administrative Agent or the applicable Lender shall have received all documentation and other information regarding the US Borrower in form and substance satisfactory to such Agent or applicable Lender (as the case may be) to the extent requested in writing on or prior to the date that is 5 Business Days after Closing Date in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Canadian Anti-Money Laundering & Anti-Terrorism Legislation and (y) to the extent any such Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, any Lender that has requested in writing on or prior to the date that is 5 Business Days after Closing Date a Beneficial Ownership Certification in relation to the US Borrower shall have received such Beneficial Ownership Certification (it being understood that, if no such request is made pursuant to clause (x) or (y), the US Borrower shall constitute a Tranche B Borrower on and after the date that is 5 Business Days after Closing Date).
“Tranche B Borrowing Conditions” has the meaning given to the term in Section 2.1(a).
“Tranche B Lender” means any Lender having a Tranche B Revolving Commitment; provided that no Tranche B Lender shall make available Loans to the French Borrower or the Italian Borrower, in each case, unless it qualifies as French Qualifying Lender or Italian Tax Qualifying Lender, as applicable, and, with respect to any Tranche B Loan, it shall be an entity duly licensed to carry out lending activities in Italy pursuant to the applicable laws and regulations.
“Tranche B Loan” as defined in Section 2.1(a)(ii).
“Tranche B Maximum Credit” means, at any time, the lesser of (i) the Tranche B Revolving Commitments in effect at such time and (ii) the sum of the Total Shared Borrowing Base and the French Borrowing Base and the Italian Borrowing Base, in each case at such time.
“Tranche B Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Tranche B Loans, expressed as an amount representing the maximum aggregate amount of such Lender’s Tranche B Revolving Credit Outstandings hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.12, and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.6. The initial amount of each Lender’s Tranche B Revolving Commitment as of the Closing Date is set forth on Appendix A, or the Assignment Agreement pursuant to which such Lender shall have assumed its Tranche B Revolving Commitment, as applicable. The aggregate amount of the Tranche B Revolving Commitments as of the Closing Date is $25,000,000.00.
“Tranche B Revolving Credit Exposure” means, with respect to any Lender as of any date of determination, the sum of the aggregate outstanding principal amount of the Dollar Equivalent of the Tranche B Loans of that Lender.
“Tranche B Revolving Credit Outstandings” means, at any particular time the principal amount of the Tranche B Loans outstanding at such time.
“Tranche C Available Credit” means, at any time, the lesser of (i) the then effective Tranche C Revolving Commitments and (ii) (A) in the case of a Credit Extension to a US Borrower or a Swiss Borrower only, the Total Shared Borrowing Base; (B) in the case of a Credit Extension to a Belgian Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the Belgian Borrowing Base of such Borrower, minus the Belgian Outstandings of such Borrower; and (y) zero; (C) in the case of a Credit Extension to a Dutch Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the Dutch Borrowing Base of such Borrower minus the Dutch Outstandings of such Borrower; and (y) zero; (D) in the case of a Credit Extension to a German Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the German Borrowing Base of such Borrower, minus the German Outstandings of such Borrower; and (y) zero; (E) in the case of a Credit Extension to a Polish Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the Polish Borrowing Base of such Borrower minus the Polish Outstandings of such Borrower; and (y) zero; (F) in the case of a Credit Extension to a Spanish Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the Spanish Borrowing Base of such Borrower, minus the Spanish Outstandings of such Borrower; and (y) zero; (G) in the case of a Credit Extension to a Swedish Borrower only, an amount equal to the greater of (x) the Swedish Borrowing Base of such Borrower minus the Swedish Outstandings of such Borrower; and (y) zero; and (H) in the case of a Credit Extension to a UK Borrower only, the Total Shared Borrowing Base plus an amount equal to the greater of (x) the UK Borrowing Base of such Borrower, minus the UK Outstandings of such Borrower; and (y) zero; provided that, notwithstanding the foregoing, in determining the Tranche C Available Credit, (i) in no event shall the European Borrowing Base exceed 50% of the Global Borrowing Base and (ii) in no event shall the Specified Borrowing Base exceed 10% of the Global Borrowing Base.
“Tranche C Borrowers” means each Belgian Borrower, Dutch Borrower, German Borrower, Polish Borrower, Spanish Borrower, Swiss Borrower, Swedish Borrower, UK Borrower and US Borrower.
“Tranche C Borrowing Conditions” has the meaning given to the term in Section 2.1(a).
“Tranche C Lender” means any Lender having a Tranche C Revolving Commitment.
“Tranche C Loan” as defined in Section 2.1(a)(iii).
“Tranche C Maximum Credit” means, at any time, the lesser of (i) the Tranche C Revolving Commitments in effect at such time and (ii) the sum of the Total Shared Borrowing Base and the Belgian Borrowing Base, the Dutch Borrowing Base, the German Borrowing Base, the Polish Borrowing Base, the Spanish Borrowing Base, the Swedish Borrowing Base and the UK Borrowing Base, in each case at such time.
“Tranche C Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Tranche C Loans, expressed as an amount representing the maximum aggregate amount of such Lender’s Tranche C Revolving Credit Outstandings hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.12, and (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 10.6. The initial amount of each Lender’s Tranche C Revolving Commitment as of the Closing Date is set forth on Appendix A, or the Assignment Agreement pursuant to which such Lender shall have assumed its Tranche C Revolving Commitment, as applicable. The aggregate amount of the Tranche C Revolving Commitments as of the Closing Date is $70,000,000.00.
“Tranche C Revolving Credit Exposure” means, with respect to any Lender as of any date of determination, the sum of the aggregate outstanding principal amount of the Dollar Equivalent of the Tranche C Loans of that Lender.
“Tranche C Revolving Credit Outstandings” means, at any particular time the principal amount of the Tranche C Loans outstanding at such time.
“Treasury Regulations” means the rules and regulations promulgated by the U.S. Treasury Department under the Internal Revenue Code.
“TSA” means the Transaction Support Agreement, dated as of October 20, 2022, by and among the Parent Borrower, the Subsidiaries of the Parent Borrower party thereto as guarantors, and the Consenting Parties (as defined therein) (as amended by that certain Amendment No. 1 to the TSA, dated as of November 28, 2022, and as further amended, restated, supplemented, or otherwise modified from time to time).
“Type of Loan” means (i) with respect to the Revolving Loans, a ABR Loan, Canadian Prime Rate Loan, an RFR Loan or a Term Benchmark Loan and (ii) with respect to Tranche A Swing Line Loans, a ABR Loan. “Type of Borrowing” shall have a corresponding meaning.
“UCC” means the Uniform Commercial Code (or any similar or equivalent legislation) as in effect in any applicable jurisdiction.
“UFCA” as defined in Section 10.25.
“UFTA” as defined in Section 10.25.
“UK Borrower” as defined in the recitals hereto or any other Person incorporated under the laws of England and Wales that is added as a UK Borrower in accordance with the terms hereof.
“UK Borrowing Base” means, with respect to the UK Borrower at any time, the amount (expressed as a Dollar Equivalent amount) equal to:
(a)the sum of:
(iii)in the case of Qualified Cash, the Dollar Equivalent of the Qualified Cash of the UK Borrower; and
(iv)in the case of Eligible Receivables, the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the UK Borrower (calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time);
minus
(b)any applicable Reserve then in effect to the extent applicable to such UK Borrower or such Eligible Receivables.
“UK Collateral Documents” means, individually and collectively as the context may require, the UK Debenture, the UK Floating Charge, the UK Share Charge and any other agreements, instruments and documents governed by the laws of England and Wales executed in connection with this Agreement and the Agreed Security Principles that are intended to create, perfect or evidence Liens to secure the Obligations, including, without limitation, all other security agreements, charges, control agreements, debentures, pledge agreements, mortgages, deeds of trust, guarantees, pledges, assignments, all other written matter whether theretofore, and delivered to the European Collateral Agent, as the same may be amended, restated or otherwise modified from time to time.
“UK Credit Party” means each UK Borrower and each UK Guarantor. “UK CTA” means the United Kingdom Corporation Tax Act 2009.
“UK Debenture” means the security agreement governed by English law dated on or about the date of this Agreement between the European Collateral Agent, the UK Borrower and the UK Guarantor.
“UK Financial Institutions” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Floating Charge” means the security agreement over inventory of DNGL, located in England and Wales governed by English law dated on or about the date of this Agreement between the European Collateral Agent and DNGL.
“UK Guarantor” means any European Guarantor incorporated under the laws of England and
Wales.
“UK Insolvency Event” shall mean (a) any corporate action, legal proceedings or other procedure or step is taken in relation to: (i) the suspension of payments, a moratorium of any indebtedness (provided the ending of such moratorium will not remedy any Event of Default caused by such moratorium), winding-up, dissolution, administration or reorganization (by way of voluntary arrangement, scheme of arrangement or otherwise) of any UK Credit Party; (ii) a composition, compromise, assignment or arrangement with any creditor of any UK Credit Party in connection with or
as a result of any financial difficulty on the part of any UK Credit Party; (iii) the appointment of a liquidator, receiver, administrative receiver, administrator, monitor, compulsory manager or other similar officer in respect of any UK Credit Party, or any of its assets; (iv) the enforcement of any Lien over any assets of any UK Credit Party; or (v) any expropriation, attachment, sequestration, distress or execution or any analogous process in any jurisdiction affects any asset or assets of a UK Credit Party, or any analogous procedure or step is taken in any jurisdiction provided that clauses (a)(i) to (v) above shall not apply to (i) any winding-up petition which is frivolous or vexatious or which is discharged, stayed or dismissed within 14 days of commencement, (ii) the appointment of an administrator (or any procedure or step in relation to such appointment) which the Administrative Agent is satisfied will be withdrawn and unsuccessful or (iii) any actions expressly permitted by the Credit Agreement; or (b) any UK Credit Party is unable or admits inability to pay its debts as they fall due, suspends or threatens to suspend making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors (excluding any Secured Party in its capacity as such) with a view to rescheduling its indebtedness or the value of the assets of any UK Credit Party is less than its liabilities (taking into account contingent or prospective liabilities).
“UK ITA” means the United Kingdom Income Tax Act 2007.
“UK Non-Bank Lender” means a Lender which is not party to this Agreement on the date of this Agreement and which gives a UK Tax Confirmation in the documentation which it executes on becoming a party to this Agreement as a Lender.
“UK Outstandings” means, with respect to any UK Borrower at any particular time, the principal amount of the Tranche C Loans made to such UK Borrower outstanding at such time.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“UK Share Charge” means the security agreement over the shares of the UK Borrower governed by English law dated on or about the date of this Agreement between the European Collateral Agent and WNI.
“UK Tax Qualifying Lender” means (a) a Lender that is beneficially entitled to interest payable to that Lender in respect of an advance under this Agreement and is (i) a Lender (1) that is a bank (as defined for the purpose of section 879 UK ITA) making an advance under this Agreement and is within the charge to UK corporation tax as respects any payments of interest made in respect of that advance or would be within such charge as respects such payments apart from section 18A of the UK CTA or (2) in respect of an advance made under this Agreement by a person that was a bank (as defined for the purpose of section 879 UK ITA) at the time the advance was made and within the charge to UK corporation tax as regards any payment of interest made in respect of that advance; or (ii) a Lender which is (1) a company resident in the UK for UK tax purposes, (2) a partnership each member of which is (A) a company so resident in the UK or (B) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK CTA) 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 CTA; or (3) a company not so resident in the UK which carries on a trade in the UK 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 CTA) of that company; or (iii) a UK Treaty Lender or (b) a Lender which is a building society (as defined for the purposes of Section 880 of the UK ITA) making an advance under a this Agreement.
“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 this Agreement is either (a) a company resident in the UK for UK tax purposes, (b) a partnership, each member of which is (i) a company so resi- dent in the UK; or (ii) a company not so resident in the UK which carries on a trade in the UK through a permanent establishment and which brings into account in computing its chargeable profits (within the meaning of section 19 of the UK CTA) the whole or any share of the interest payable in respect of that advance that falls to it by reason of Part 17 of the UK CTA; or (c) a company not so resident in the UK that carries on a trade in the UK through a permanent establishment and which brings into account inter- est payable in respect of such advance in computing the chargeable profits (within the meaning of section 19 of the UK CTA) of such company.
“UK Tax Deduction” means, with respect to a Loan to a UK Borrower, a deduction or withhold- ing from a payment under this Agreement for and on account of any Taxes imposed by the UK other than a Tax imposed under FATCA.
“UK Treaty” has the meaning set forth in the definition of “UK Treaty State”. “UK Treaty Lender” means a Lender which:
(a)is treated as a resident of a Treaty State for the purposes of the relevant treaty;
(b)does not carry on a business in the UK through a permanent establishment with which that Lender’s participation in any advance is effectively connected; and
(c)meets all other conditions which are required to be met by that Lender under the rele- vant treaty for residents of the relevant Treaty State to benefit from full exemption from Tax im- posed by the United Kingdom on interest subject to the completion of any necessary procedural formalities.
“UK Treaty State” means a jurisdiction having a double taxation agreement with the UK (a “UK Treaty”) which makes provision for full exemption from tax imposed by the UK on interest.
“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.
“Units” as defined in the TSA.
“U.S.” means the United States of America.
“US Borrowers” as defined in the recitals hereto or any other Person added as an US Borrower in accordance with the terms hereof.
“US Borrowing Base” means:
(a)the sum of:
(v)in the case of Qualified Cash, the Qualified Cash of the US Borrower;
(vi)in the case of Eligible Receivables, the product of 95% multiplied by the Dollar Equivalent of the face amount of all Eligible Receivables of the US Borrower
(calculated net of all finance charges, late fees and other fees that are unearned, sales, excise or similar taxes, and credits or allowances granted at such time); and
(vii)in the case of Eligible Inventory, the lesser of (A) 70% of the value of Eligible Inventory of the US Borrower (valued, for each class of such Eligible Inventory, at the lower of cost and market on a first-in, first-out basis) constituting each class of such Eligible Inventory at such time and (B) 90% of the Net Orderly Liquidation Value Percentage of such Eligible Inventory of the US Borrower (valued at the lower of cost and market on a first-in, first-out basis) constituting each class of Eligible Inventory at such time;
minus
(b)any applicable Reserve then in effect to the extent applicable to the US Borrowers or such Eligible Receivables or Eligible Inventory.
“U.S. Collateral Document” means the Security Agreement and each other Collateral Document governed by the laws of the United States or any state, territory or province thereof.
“US Credit Party” means each US Borrower and each US Guarantor.
“U.S. Government Securities Business Day” means any day except for (i) a Saturday, (ii) a Sunday or (iii) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
“US Guarantor” means the Parent Borrower and each US Guarantor Subsidiary.
“US Guarantor Subsidiary” means each US Subsidiary that is identified as a “Guarantor” on the signature pages hereto and each other US Subsidiary that becomes a Guarantor after the date hereof in accordance with Section 5.11 or otherwise, provided that, for the avoidance of doubt, this definition is subject to the proviso of the definition of “Guarantor”.
“US Lender” means a Lender or Issuing Bank that is a United States person within the meaning of Section 7701(a)(30) of the Internal Revenue Code.
“US Obligations” means all obligations of every nature of each US Credit Party under the Credit Documents, together with all obligations from time to time owed to the Agents (including former Agents), the Lenders or any of them and Approved Counterparties or any of them, under any Cash Management Document, Hedge Agreement or Bi-lateral LC/WC Agreement, in each case whether for principal, interest (including interest which, but for the filing of a petition in bankruptcy with respect to such Credit Party, would have accrued on any US Obligation, whether or not a claim is allowed against such Credit Party for such interest in the related bankruptcy proceeding), reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise.
“US Outstandings” means, with respect to the US Borrowers at any particular time, the sum of
(a) the principal amount of the Revolving Loans, (b) the Letter of Credit Usage and (c) the principal amount of the Swing Line Loans made to the US Borrowers at such time.
“U.S. Special Resolution Regime” has the meaning assigned to it in Section 10.27.
“US Subsidiary” means each present and future Subsidiary of the Parent Borrower that is not a Foreign Subsidiary.
“United States Tax Compliance Certificate” as defined in Section 2.19(k).
“VAT” as defined in Section 2.19(u) and includes (a) any value added taxes imposed by the United Kingdom's Value Added Tax Act 1994; (b) 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
(c)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 paragraphs (a) or (b), or imposed elsewhere.
“Voting Stock” of a Person means all classes of Capital Stock of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or similar persons thereof.
“Warrants” as defined in the TSA.
“WEPPA” means the Wage Earner Protection Program Act (Canada).
“Wholly Owned Subsidiary” of a Person means any other Person of which 100% of the outstanding Capital Stock of which (other than directors’ qualifying shares required by law) shall at the time be owned or controlled, directly or indirectly, by such Person and/or one or more Affiliates of such Person. “Wholly Owned US Subsidiary” has the correlative meaning with respect to such type of Subsidiary.
“Wincor Nixdorf Defined Benefit Pension Scheme” means the defined benefit pension scheme established pursuant to a definitive deed dated 1 December 2000 between Diebold Nixdorf (UK) Limited and Richard Mosely Bearpark.
“WNI” shall have the meaning given to such term in the preamble hereto.
“Write-Down and Conversion Powers” means, (a) 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, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
1.2Accounting Terms. Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Parent Borrower to Lenders pursuant to Section 5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation. Calculations in connection with the definitions, covenants and other provisions hereof shall be made in accordance with GAAP as in effect from time to time (it being agreed that 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) any election under
Accounting Standards Codification 825-10-25 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any Indebtedness or other liabilities of the Borrowers or any Subsidiary at “fair value,” as defined therein and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof). If, after the Closing Date, any change in the accounting principles used in the preparation of the most recent financial statements referred to in Section 5.1 is hereafter required or permitted by the rules, regulations, pronouncements and opinions of the Financial Accounting Standards Board or the American Institute of Certified Public Accountants (or any successors thereto) and such change is adopted by a Borrower with the approval of the Borrowers’ Accountants and results in a change in any of the calculations required by Section 6 (including Section 6.7) that would not have resulted had such accounting change not occurred, if requested by the Parent Borrower or the Administrative Agent, the parties hereto agree to enter into negotiations in good faith in order to amend such provisions so as to equitably reflect such change such that the criteria for evaluating compliance with such covenants by the applicable Credit Party or Subsidiary shall be the same after such change as if such change had not been made (subject to the approval of the Required Lenders and not subject to any amendment fee or increase in pricing hereunder); provided, however, that (i) no change in GAAP that would affect a calculation that measures compliance with any covenant contained in Section 6 (including Section 6.7) shall be given effect until such provisions are amended to reflect such changes in GAAP and (ii) together with the first financial statements delivered by the Parent Borrower pursuant to Section 5.1 following such change in GAAP, the Parent Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between such calculations made before and after giving effect to such change in GAAP. Notwithstanding any changes in GAAP after December 31, 2018, any lease of the Parent Borrower or its Subsidiaries that would be characterized as an operating lease under GAAP in effect on December 31, 2018, whether such lease is entered into before or after December 31, 2018, shall not constitute Indebtedness or a Finance Lease Obligation of the Parent Borrower or any Subsidiary under this Agreement or any other Credit Document as a result of such changes in GAAP.
1.3Interpretation, Etc. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference. References herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided. The use herein of the word “include” or “including,” when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not any limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter. Unless the prior written consent of the Required Lenders is required hereunder for an amendment, restatement, supplement or other modification to any such agreement and such consent is not obtained, references in this Agreement to such agreement shall be to such agreement as so amended, restated, supplemented or modified. References in this Agreement to any statute or regulation shall be to such statute or regulation as amended or modified from time to time and to any successor legislation thereto, in each case as in effect at the time any such reference is operative. For the avoidance of doubt, with respect to a Person, the term “Affiliate” includes any other Person that becomes an “Affiliate” of such Person after the date hereof. The terms “Lender,” “Issuing Bank,” “Administrative Agent,” “Collateral Agent,” “European Collateral Agent” and “Agent” include, without limitation, their respective successors. Upon the appointment of any successor Agent pursuant to Section 9.5, references to JPMorgan in the definitions
of Alternate Base Rate, Dollar Equivalent and Term Benchmark (and, in each case, component definitions thereof) shall be deemed to refer to the financial institution then acting as such Agent or one of its Affiliates if it so designates.
1.4French terms. In this Agreement, where it relates to the French Credit Party:
(a)“gross negligence” means “faute lourde”;
(b)a “guarantee” means any type of “sûreté personnelle”;
(c)“merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code;
(d)a “security interest” includes any type of security (sûreté réelle) and transfer by way of security;
(e)a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f)“trustee, fiduciary and fiduciary duty” has in each case the meaning given to such term under any applicable law;
(g)“willful misconduct” means “dol”;
(h)a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code;
(i)a “suspension of payments,” a “moratorium of any indebtedness,” a “winding- up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code;
(j)a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code;
(k)a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refers to, any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur” or similar officer; and
(l)a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
1.5Italian terms. Without prejudice to the generality of any provision of this Agreement, in this Agreement, where it relates to an entity incorporated or established under Italian law or which has its centre of main interest and/or its central administration in Italy or the context so requires, a reference to:
(m)a “winding-up”, “administration”, “dissolution” or “liquidation”, includes, without limitation, any scioglimento, liquidazione, and any other proceedings or legal concepts similar to the foregoing;
(n)an “insolvency” shall be construed in accordance with article 2, paragraph 1, letter b) (definizioni) of the Italian Crisis and Insolvency Code and/or article 3 of Legislative Decree No. 270 of 8 July 1999 (as amended from time to time) and any other equivalent applicable law provisions in any relevant jurisdiction;
(o)an “insolvency proceeding”, includes, without limitation:
(i)any voluntary or involuntary liquidation, winding-up, administration or dissolution (other than in each case on a solvent basis), judicial liquidation, bankruptcy (to the extent applicable after 15 July 2022), insolvency, reorganisation, moratorium, compromise, composition or other relief with respect to any person or that person’s debts; or
(ii)any proceeding aimed at seeking the appointment of, or taking possession by a liquidator, commissioner, examiner, receiver, administrative receiver, administrator, insolvency administrator, trustee in bankruptcy, custodian, judicial custodian, conservator or other similar official for any person or for all or any substantial part of that person’s assets; or
(iii)any procedura concorsuale including judicial liquidation (liquidazione giudiziale) and concordato nella liquidazione giudiziale pursuant to articles 240 and ff. of the Italian Crisis and Insolvency Code, concordato preventivo pursuant to articles 84 and
ff. of the Italian Crisis and Insolvency Code, liquidazione coatta amministrativa pursuant to articles 293 and ff. of the Italian Crisis and Insolvency Code, crisis settlement procedure (composizione negoziata della crisi) pursuant to article 12 and ff. of the Italian Crisis and Insolvency Code restructuring plan (piano attestator di risanamento) pursuant to article 56 of the Italian Crisis and Insolvency Code, assignment for the benefit of creditors (cessione dei beni ai creditori) pursuant to article 1977 of the Italian Civil Code, accordi di ristrutturazione under articles 57 and ff. of the Italian Crisis and Insolvency Code, accordo di ristrutturazione agevolato pursuant to article 60 of the Italian Crisis and Insolvency Code, accordo di ristrutturazione dei debiti a efficacia estesa pursuant to article 61 of the Italian Crisis and Insolvency Code, convenzione di moratoria pursuant to article 62 of the Italian Crisis and Insolvency Code, tax and contributions transaction (transazione su crediti tributari e contributivi) pursuant to article 63 of the Italian Crisis and Insolvency Code restructuring plan subject to homologation (piano di ristrutturazione soggetto ad omologazione) pursuant to article 64-bis and ff. of the Italian Crisis and Insolvency Code, domanda di accesso ad uno strumento di regolazione della crisi e dell’insolvenza con riserva di deposito di documentazione pursuant to article 44 of the Italian Crisis and Insolvency Code, simplified asset liquidation procedure (concordato semplificato per la liquidazione del patrimonio) pursuant to article 25-sexies and ff. of the Italian Crisis and Insolvency Code, minor composition with creditors (concordato minore) pursuant to article 74 and ff. of the Italian Crisis and Insolvency Code, or amministrazione straordinaria delle grandi imprese in stato di insolvenza under Italian Law No. 270 of 8 July 1999, as amended, or any amministrazione straordinaria under Italian Law No. 39 of 18 February 2004, and any similar arrangements relating to a substantial part of its creditors, and shall be construed so as to include any equivalent or analogous proceedings or legal concepts similar to the foregoing (it being understood that
the provisions under the Italian Bankruptcy Law continue to apply with reference to any proceedings commenced before 15 July 2022 and therefore the relevant tools and proceedings are intended to be included herein to the extent applicable);
(iv)a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, examiner, receiver, administrative receiver, administrator, custodian or insolvency administrator or the other similar officer includes, without limitation, a curatore, commissario giudiziale, esperto, commissario straordinario, commissario liquidatore, or any other person performing the same function of any of the foregoing;
(v)a step or procedure taken in connection with insolvency proceedings in respect of any person includes such person formally making a proposal to assign its assets pursuant to Article 1977 of the Civil Code (cessione beni ai creditori), the approval by such person of the filing of a petition for the appointment of a expert (esperto) for the purposes of a composizione negoziata della crisi pursuant to article 17 and ff. of the Italian Crisis and Insolvency Code, or pursuant to article 40 and ff. of the Italian Crisis and Insolvency Code, or of a domanda di accesso ad uno strumento di regolazione della crisi e dell’insolvenza con riserva di deposito di documentazione pursuant to article 44 of the Italian Crisis and Insolvency Code or, more generally, of the access to one of the insolvency proceedings listed under letter (c) above (it being understood that the provisions under the Italian Bankruptcy Law continue to apply with reference to any proceedings commenced before 15 July 2022 and therefore any filing of documents, any executed agreement or other action adopted in order to activate the relevant tools and proceedings are intended to be included herein to the extent applicable);
(vi)a lease includes, without limitations, a contratto di locazione or
comodato;
(vii)a due or matured obligation if referred to an Italian Borrower and/or Italian Guarantor includes, without limitation, any credito liquido ed esigibile and any credito scaduto;
(viii)security if referred to a security or guarantee governed by Italian law includes, without limitation, any pegno, ipoteca, , fideiussione, garanzia a prima domanda, cessione del credito in garanzia, and any other garanzia reale or garanzia personale;
(ix)a “guarantee”, if referred to a guarantee governed by Italian law includes, without limitation, any fideiussione, garanzia a prima domanda or garanzia personale;
(x)a reference to financial assistance means unlawful financial assistance within the meaning of articles 2358 and/or 2474 of the Italian Civil Code as applicable;
(xi)gross negligence (or similar expressions) shall be construed as the Italian expression colpa grave;
(xii)wilful misconduct (or similar expressions) shall be construed as the Italian expression dolo;
(xiii)a limited liability company means a società a responsabilità limitata;
(xiv)a joint stock company means a società per azioni; and
(xv)an attachment or order (or similar expressions) includes a
pignoramento or a sequestro.
In relation to letter (ix) above, all Parties to this Agreement acknowledge that no Italian Credit Party shall have or be deemed to have (directly or indirectly) any obligation and/or liability in respect of (directly and/or indirectly) the acquisition or subscription of its own shares (and/or the shares of any entity directly or indirectly controlling any such Italian Obligor) or which would in any manner whatsoever give rise to a breach of the provisions of Italian law relating to financial assistance, as provided in Articles 2358 and/or 2474 of the Italian Civil Code, unless in compliance with the limitations and exceptions set forth therein. This Agreement and any other Credit Document shall, therefore, be construed and interpreted accordingly.
1.6Swedish terms
Notwithstanding and overriding any other provision of this Agreement and any other Credit Document and/or any exhibit or schedule thereto:
(p)any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent;
(q)for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Collateral Document governed by the laws of Sweden, assign a proportionate part of the security interests granted under that Collateral Document together with a proportional part of the security interest in that Collateral Document;
(r)any security granted under a Collateral Document governed by the laws of Sweden will be granted to the secured parties represented by the European Collateral Agent;
(s)a “compromise” or “composition” with any creditor includes (a) any write- down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (b) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”);
(t)a “receiver”, “trustee” or “liquidator” includes (a) ‘rekonstruktör’ under the Swedish Company Reorganisation Act, (b) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (c) ‘likvidator’ under the Swedish Companies Act;
(u)a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any 'delning' implemented in accordance with Chapter 24 of the Swedish Companies Act;
(v)a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a
‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act;
(w)“gross negligence” means ‘grov vårdslöshet’ under Swedish law;
(x)a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates;
(y)an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act;
(z)in relation to this Agreement and any other Credit Document, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden (including but not limited to the Swedish Borrower) will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the Swedish Companies Act.
1.7Polish terms
In this Agreement, where it relates to a person incorporated or having its centre of main interests (as defined in the Insolvency Regulation) in Poland, a reference to:
(aa)an agent includes an attorney (pełnomocnik), delivery agent (pełnomocnik do doręczeń), pledge administrator (administrator zastawu), mortgage administrator (administrator hipoteki) and mandatory (zleceniobiorca) of a person;
(ab)a composition, compromise, reorganisation or similar arrangement with any creditor includes a układ concluded or approved during insolvency proceedings under Polish Insolvency Law or restructuring proceedings (postępowanie restrukturyzacyjne) under Polish Restructuring Law. This also includes a partial composition (układ częściowy)
(ac)a compulsory manager, receiver or administrator includes a tymczasowy nadzorca sądowy, tymczasawy zarządca, nadzorca, nadzorca sądowy, nadzorca układu, syndyk or zarządca, as defined in Polish Bankruptcy Law or Polish Restructuring Law. This also includes zarządca appointed under the Polish Act on Registered Pledges or the Polish Civil Procedure Code and a kurator sądowy appointed under the Polish Civil Code;
(ad)a dissolution includes a rozwiązanie spółki in accordance with the Polish Commercial Companies Code;
(ae)a liquidator includes a likwidator appointed under the Polish Commercial Companies Code;
(af)a moratorium includes a odroczenie spłaty zobowiązań pieniężnych;
(ag)a security or security interest means any mortgage (hipoteka), pledge (zastaw), registered pledge (zastaw rejestrowy), financial pledge (zastaw finansowy), security assignment (przelew praw na zabezpieczenie), security transfer of title (przewłaszczenie na zabezpieczenie),
retention right (prawo zatrzymania), right to reclaim sold goods (zastrzeżenie własności rzeczy
sprzedanej);
(ah)a winding up includes a declaration of bankruptcy.
1.8German terms. In this Agreement, where it relates to a German Credit Party:
(ai)a necessary action to authorize, where applicable, includes without limitation, obtaining an unconditional positive advice from the competent works council(s);
(aj)gross negligence includes grobe Fahrlässigkeit;
(ak)negligence includes Fahrlässigkeit;
(al)a security interest includes any mortgage (Grundschuld, Hypothek), pledge (Pfandrecht), retention of title arrangement (Eigentumsvorbehalt), right of retention (Zurückbehaltungsrecht), right to reclaim goods (Herausgabeansprüche), and, in general, any right in rem created for the purpose of granting security;
(am)a winding-up, administration or dissolution (and any of those terms) includes a German entity being declared bankrupt (insolvent) or dissolved (ausfgelöst);
(an)any step or procedure taken in connection with insolvency proceedings includes a German entity having applied for bankruptcy (Insolvenzantrag) or the opening of bankruptcy proceedings (Insolvenzeröffnung);
(ao)an administrator includes an insolvency administrator (Insolvenzverwalter), preliminary insolvency administrator (vorläufiger Insolvenzverwalter) and custodian (Sachwalter);
(ap)a reference to a “director” or “managing director” of a person includes a reference to a Geschäftsführer or Vorstand (as applicable) of such person where such company or person is incorporated in, or organised under the laws of, Germany;
(aq)“filing for insolvency” or “to file for insolvency” includes the meaning of Antrag auf Eröffnung eines Insolvenzverfahrens;
(ar)“commencement of insolvency proceedings” or “opening of insolvency proceedings” includes the meaning Eröffnung eines Insolvenzverfahrens.
1.9Belgian Terms. Without prejudice to the generality of any provision of the Credit Documents, in each Credit Document where it relates to a Belgian Credit Party, a reference to:
(as)a “liquidator”, “receiver”, “administrator” or similar officer includes any curator/curateur, vereffenaar/liquidateur, voorlopig bewindvoerder/administrateur provisoire, ondernemingsbemiddelaar/médiateur d’entreprise, as applicable, and sekwester/séquestre;
(at)a “Security” includes any mortgage (hypotheek/hypothèque), pledge (pand/nantissement), any mandate to grant a mortgage, a pledge or any other real security (mandaat/mandat), privilege (voorrecht/privilège), retention of title arrangement (eigendomsvoorbehoud/droit de rétention), any real security (zakelijke zekerheid/sûreté réelle)
and any transfer by way of security (overdracht ten titel van zekerheid/transfert à titre de garantie);
(au)a person being “unable to pay its debts” is that person being in a state of cessation of payments (staking van betaling/cessation de paiements);
(av)a “moratorium”, “composition”, “assignment” or similar arrangement includes a minnelijk akkoord met schuldeisers/accord amiable avec des créanciers or gerechtelijke reorganisatie/réorganisation judiciaire, as applicable;
(aw)an “insolvency” includes any insolventieprocedure/procédure d’insolvabilité, faillissement/faillite, gerechtelijke reorganisatie/réorganisation judiciaire and any other concurrence between creditors (samenloop van schuldeisers/concours des créanciers);
(ax)“winding up”, “bankruptcy”, “insolvency”, “administration”, “liquidation” or “dissolution” includes any vereffening/liquidation, ontbinding/dissolution, faillissement/faillite and sluiting van een onderneming/ fermeture d’une enterprise;
(ay)an “attachment” or analogous events includes any uitvoerend beslag/saisie exécutoire and bewarend beslag/saisie conservatoire;
(az)a “merger” includes a overdracht van algemeenheid/transfert d’universalité, overdracht van bedrijfstak/transfert de branche d’activité, splitsing/scission and fusie/fusion and assimilated transaction in accordance with Articles 12:7 and 12:8, as the case may be (gelijkgestelde verrichting/opération assimilée) of the Belgian Code of Companies and Associations;
(ba)the “Belgian Civil Code” the Belgian oud Burgerlijk Wetboek/ancien Code Civil
as amended and/or replaced from time to time;
(bb)the “Belgian Code of Companies and Associations” means the Belgian Wetboek van vennootschappen en verenigingen/Code des sociétés et des associations dated 23 March 2019, as amended from time to time;
(bc)“organizational documents” means the oprichtingsakte/acte constitutif, gecoördineerde statuten/statuts and uittreksel van de Kruispuntbank van Ondernemingen/extrait de la Banque-Carrefour des Entreprises;
(bd)a “subsidiary” shall be deemed to include a dochtervennootschap/filiale as defined in Article 1:15 of the Belgian Code of Companies and Associations;
(be)a “successor” means an algemene rechtsopvolger/successeur universel; and
a Credit Party being “incorporated in Belgium” or “of which its jurisdiction of incorporation is Belgium”, means that such Credit Party has its statutory seat in Belgium.
1.10Certain Spanish Matters. Where it relates to a person incorporated in Spain, and unless the contrary intention appears, a reference to: (i) “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including a declaración de concurso con independencia de su carácter necesario o voluntario as well as any solicitud de inicio del procedimiento de concurso voluntario, the request of declaration of insolvency by a
third party (solicitud de concurso por acreedores) (including without limitation, any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, petition to appoint a restructuring expert pursuant to articles 672 et seq., and its solicitud de inicio de procedimiento de concurso, auto de declaración de concurso, convenio judicial o extrajudicial con acreedores and transacción extrajudicial). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law; (ii) “financial assistance” means (a) in respect of a Spanish Credit Party incorporated as a Sociedad Anónima, financial assistance under Article 150 of the Spanish Companies Law; and (b) in respect of a Spanish Credit Party incorporated as a Sociedad de Responsabilidad Limitada, financial assistance under Article 143 of the Spanish Companies Law; (iii) “winding up” or “dissolution” includes, without limitation, disolución or liquidación, or any other similar proceedings and shall be used to those circumstances as regulated under Spanish law from time to time; (iv) a “composition” or similar arrangement with any creditor includes, without limitation, a convenio de acreedores or plan de reestructuración to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under Title II or Title III of the Second Book of the Spanish Insolvency Law; (v) a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem security right governed by Spanish law; and (vi) a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).
1.11Certain Canadian Matters. For purposes of the interpretation or construction of this Agreement pursuant to the laws of the Province of Quebec, for purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other Collateral Document) and for all other purposes pursuant to which the interpretation or construction of any other Collateral Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (a) “personal property” shall be deemed to include “movable property”, (b) “real property” shall be deemed to include “immovable property”, (c) “tangible property” shall be deemed to include “corporeal property”, (d) “intangible property” shall be deemed to include “incorporeal property”,
(e) “security interest”, “mortgage” and “lien” shall be deemed to include a “hypothec”, a “reservation of ownership”, “prior claim” and a “resolutory clause,” (f) all references to filing, registering or recording under the PPSA shall be deemed to include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to an “opposable” or “set up” Liens as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (i) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall be deemed to include a “mandatary,” (k) “construction liens” shall be deemed to include “legal hypothecs in favor of persons having taken part in the construction or renovation of an immovable”, (l) “joint and several” shall be deemed to include “solidary” and “jointly and severally” shall be deemed to include “solitarily” (m) “gross negligence or willful misconduct” shall be deemed to be “intentional or gross fault”, (n) “beneficial ownership” shall be deemed to include “ownership on behalf of another as mandatary”, (o) “legal title” shall be deemed to include “holding title on behalf of an owner as mandatary or prête-nom”, (p) “easement” shall be deemed to include “servitude”, (q) “priority” shall be deemed to include “prior claim” or “rank”, as applicable, (r) “survey” shall be deemed to include “certificate of location and plan”, (s) “fee simple title” and “fee title” shall be deemed to include “right of ownership”,
(t) “foreclosure” shall be deemed to include “the exercise of a hypothecary right”, (u) “leasehold interest” shall be deemed to include “valid rights resulting from a lease”, (v) “lease” for personal or movable property shall be deemed to include a “contract of leasing (crédit-bail)” and (x) “deposit account” shall include a “financial account” as defined in Article 2713.6 of the Civil Code of Québec.
1.12Certain Swiss Matters. Notwithstanding anything to the contrary in this Agreement, in no event shall the Swiss Borrower be required to guarantee any Obligation or be deemed to guarantee any
Obligation, nor shall the Swiss Borrower be required to grant any security interest over its assets to secure the Obligations.
1.13Exchange Rates; Currency Equivalents.
(bf)The Administrative Agent or the Issuing Bank, as applicable, shall determine the Dollar Equivalent amounts of Term Benchmark Borrowings, RFR Borrowings, Swing Line Loans, Canadian Prime Rate Borrowings or Letter of Credit extensions denominated in Alternative Currencies. Such Dollar Equivalent shall become effective as of such Revaluation Date and shall be the Dollar Equivalent of such amounts until the next Revaluation Date to occur. Except for purposes of financial statements delivered by the Borrower hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any Agreed Currency (other than Dollars) for purposes of the Credit Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the Issuing Bank, as applicable.
(bg)Wherever in this Agreement in connection with a Borrowing, conversion, continuation or prepayment of a Term Benchmark Loan, an RFR Loan, a Swing Line Loan, or a Canadian Prime Rate Loan or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency, such amount shall be the Dollar Equivalent of such amount (rounded to the nearest unit of such Alternative Currency, with 0.5 of a unit being rounded upward), as determined by the Administrative Agent or the Issuing Bank, as the case may be.
(bh)If, on any date, the Dollar Equivalent of the aggregate amount of the Revolving Credit Exposure shall exceed 105% of the aggregate Revolving Commitment as a result of currency fluctuations, then the applicable Borrowers shall, not later than two Business Days following notice from the Administrative Agent, prepay one or more Borrowings in an aggregate principal amount sufficient to eliminate such excess.
1.14Excluded Swap Obligations. Notwithstanding any provision of this Agreement or any other Credit Document, no guarantee by any Credit Party under any Credit Document shall include a guarantee of any Obligation that, as to such Credit Party, is an Excluded Swap Obligation and no Collateral provided by any Credit Party shall secure any Obligation that, as to such Credit Party, is an Excluded Swap Obligation. In the event that any payment is made by, or any collection is realized from, any Credit Party as to which any Obligations are Excluded Swap Obligations, or from any Collateral provided by such Credit Party, the proceeds thereof shall be applied to pay the Obligations of such Credit Party as otherwise provided herein without giving effect to such Excluded Swap Obligations and each reference in this Agreement or any other Credit Document to the ratable application of such amounts as among the Obligations or any specified portion of the Obligations that would otherwise include such Excluded Swap Obligations shall be deemed so to provide.
1.15Interest Rates; Benchmark Notifications. The interest rate on a Loan denominated in Dollars or an Alternative Currency may be derived from an interest rate benchmark that may be discontinued or is, or may in the future become, the subject of regulatory reform. Upon the occurrence of a Benchmark Transition Event, Section 2.25(b) provides a mechanism for determining an alternative rate of interest. The Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission, performance or any other matter related to any interest rate used in this Agreement, or with respect to any alternative or successor rate thereto, or replacement rate thereof, including without limitation, whether the composition or characteristics of any
such alternative, successor or replacement reference rate will be similar to, or produce the same value or economic equivalence of, the existing interest rate being replaced or have the same volume or liquidity as did any existing interest rate prior to its discontinuance or unavailability. The Administrative Agent and its affiliates and/or other related entities may engage in transactions that affect the calculation of any interest rate used in this Agreement or any alternative, successor or alternative rate (including any Benchmark Replacement) and/or any relevant adjustments thereto, in each case, in a manner adverse to the Borrowers. The Administrative Agent may select information sources or services in its reasonable discretion to ascertain any interest rate used in this Agreement, any component thereof, or rates referenced in the definition thereof, in each case pursuant to the terms of this Agreement, and shall have no liability to the Borrowers, any Issuing Bank, any Lender or any other person or entity for damages of any kind, including direct or indirect, special, punitive, incidental or consequential damages, costs, losses or expenses (whether in tort, contract or otherwise and whether at law or in equity), for any error or calculation of any such rate (or component thereof) provided by any such information source or service.
1.16Divisions. For all purposes under the Credit Documents, in connection with any division or plan of division under Delaware law (or any comparable event under a different jurisdiction’s laws):
(a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been transferred from the original Person to the subsequent Person, and (b) if any new Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its Equity Interests at such time.
SECTION 2. LOANS AND LETTERS OF CREDIT
2.1Revolving Loans.
(a)Revolving Commitments.
(i)Subject to the conditions contained in this Agreement, each Lender with a Tranche A Revolving Commitment severally agrees to make Loans in an Available Currency (each, a “Tranche A Loan”) to the Tranche A Borrowers from time to time on any Business Day during the Revolving Commitment Period in an aggregate principal amount at any time outstanding for all such loans by such Lender not to exceed such Lender’s Tranche A Revolving Commitment; provided, however, that (A) at no time shall any Lender be obligated to make a Tranche A Loan in excess of such Lender’s Pro Rata Share of the Tranche A Available Credit (B) no Tranche A Loan to a US Borrower may exceed the US Borrower’s Tranche A Available Credit and (C) no Tranche A Loan to a Canadian Borrower may exceed that Canadian Borrower’s Tranche A Available Credit ((A) to (C) each a “Tranche A Borrowing Condition” and together the “Tranche A Borrowing Conditions”), subject in each case to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.24. Within the limits of the Tranche A Revolving Commitment of each Lender, amounts of Tranche A Loans repaid may be reborrowed under this Section 2.1. Each Lender at its option may make any Tranche A Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.17(c), 2.17(d), 2.18, 2.19 and 2.25 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement.
(ii)Subject to the conditions contained in this Agreement, each Lender with a Tranche B Revolving Commitment severally agrees to make Loans denominated in an Available Currency (each, a “Tranche B Loan”) to the Tranche B Borrowers from time to time on any Business Day during the Revolving Commitment Period in an aggregate principal amount at any time outstanding for all such loans by such Lender not to exceed such Lender’s Tranche B Revolving Commitment; provided, however, that (A) at no time shall any Lender be obligated to make a Tranche B Loan in excess of such Lender’s Pro Rata Share of the Tranche B Available Credit, (B) no Tranche B Loan to a US Borrower may exceed that US Borrower’s Tranche B Available Credit, (C) no Tranche B Loan to a French Borrower may exceed that French Borrower's Tranche B Available Credit, and
(D) no Tranche B Loan to an Italian Borrower may exceed that Italian Borrower's Tranche B Available Credit ((A) to (D) each a “Tranche B Borrowing Condition” and together the “Tranche B Borrowing Conditions”), subject in each case to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.24. Within the limits of the Tranche B Revolving Commitment of each Lender, amounts of Tranche B Loans repaid may be reborrowed under this Section 2.1. Each Lender at its option may make any Tranche B Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.17(c), 2.17(d), 2.18, 2.19 and
2.25 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accord-ance with the terms of this Agreement.
(iii)Subject to the conditions contained in this Agreement, each Lender with a Tranche C Revolving Commitment severally agrees to make Loans denominated in an Available Currency (each, a “Tranche C Loan”) to the Tranche C Borrowers from time to time on any Business Day during the Revolving Commitment Period in an aggregate principal amount at any time outstanding for all such loans by such Lender not to exceed such Lender’s Tranche C Revolving Commitment; provided, however, that (A) at no time shall any Lender be obligated to make a Tranche C Loan in excess of such Lender’s Pro Rata Share of the Tranche C Available Credit, (B) no Tranche C Loan to a US Borrower may exceed that US Borrower’s Tranche C Available Credit, (C) no Tranche C Loan to a Belgian Borrower may exceed that Belgian Borrower’s Tranche C Available Credit, (D) no Tranche C Loan to a Dutch Borrower may exceed that Dutch Borrower’s Tranche C Available Credit, (E) no Tranche C Loan to a German Borrower may exceed that German Borrower’s Tranche C Available Credit, (F) no Tranche C Loan to a Polish Borrower may exceed that Polish Borrower’s Tranche C Available Credit (G) no Tranche C Loan to a Spanish Borrower may exceed that Spanish Borrower’s Tranche C Available Credit
(H) no Tranche C Loan to a Swedish Borrower may exceed that Swedish Borrower’s Tranche C Available Credit, (I) no Tranche C Loan to a Swiss Borrower may exceed that Swiss Borrower’s Tranche C Available Credit and (J) no Tranche C Loan to an UK Borrower may exceed that UK Borrower’s Tranche C Available Credit ((A) to (J) each a “Tranche C Borrowing Condition” and together the “Tranche C Borrowing Conditions”), subject in each case to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.24. Within the limits of the Tranche C Revolving Commitment of each Lender, amounts of Tranche C Loans repaid may be reborrowed under this Section 2.1. Each Lender at its option may make any Tranche C Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.17(c), 2.17(d), 2.18, 2.19 and 2.25 shall apply to such Affiliate to the same extent as to
such Lender); provided that any exercise of such option shall not affect the obligation of the Borrowers to repay such Loan in accordance with the terms of this Agreement.
(iv)Borrowings under the Revolving Credit Facility are available as ABR Loans (solely in the case of (i) Tranche A Loans and Tranche A Protective Advances and
(ii) Tranche B Loans and Tranche C Loans denominated in Dollars to the US Borrowers only), Canadian Prime Rate Loans (solely in the case of Tranche A Loans), Term Benchmark Loans, RFR Loans or Letters of Credit, as applicable pursuant to the availability thereof under each Tranche as set forth herein. Each Lender’s Revolving Commitment shall expire on the Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Revolving Loans and the Revolving Commitments shall be paid in full no later than such date, other than as specified in Section 2.23 with respect to any Extending Lender as set forth therein.
(b)Borrowing Mechanics for Revolving Loans.
(v)To request a Revolving Borrowing, the applicable Borrower shall notify the Administrative Agent of such request either in writing (delivered by hand, fax or email) by delivering a notice substantially the form of Exhibit A-1 (a “Funding Notice”) signed by an Authorized Officer of the applicable Borrower or through an electronic system if arrangements for doing so have been approved by the Administrative Agent not later than (a)(i) in the case of a borrowing of Term Benchmark Loans denominated in Dollars, 10:00 a.m., Local Time, three (3) U.S. Government Securities Business Days before the date of the proposed Borrowing, (ii) in the case of a borrowing of Term Benchmark Loans denominated in Euros, not later than 11:00 a.m., Local Time, three (3) Business Days before the date of the proposed Borrowing, (iii) in the case of a borrowing of RFR Loans denominated in Pounds Sterling, 10:00 a.m., Local Time, five (5) RFR Business Days before the date of the proposed Borrowing, (iv) in the case of a borrowing of RFR Loans denominated in Dollars (to the extent applicable pursuant to Section 2.25), 10:00 a.m., Local Time, five (5) U.S. Government Securities Business Days before the date of the proposed Borrowing and (v) in the case of a borrowing of Term Benchmark Loans denominated in Canadian Dollars, not later than 11:00 a.m., Local Time, three (3) Business Days before the date of the proposed Borrowing, (b) in the case of an ABR Borrowing, noon, Local Time, on the date of the proposed Borrowing or (c) in the case of a Canadian Prime Rate Borrowing, 12:00 p.m. (Toronto, Ontario time), on the date of the proposed Borrowing; provided that any such notice of an ABR Revolving Borrowing or a Canadian Prime Rate Borrowing, as applicable to finance the reimbursement of a Reimbursement Obligation as contemplated by Section 2.3(e) may be given not later than 9:00 a.m., Local Time, on the date of such proposed Borrowing. Each such Funding Notice shall be irrevocable; provided that the Funding Notice in respect of any Borrowing on the Closing Date, or in connection with any Acquisition or other transaction permitted under this Agreement, may be conditioned on occurrence of the Closing Date or such Acquisition or other transaction, as applicable. Each such Funding Notice shall specify (1) the date of such proposed Borrowing, (2) whether such Borrowing will be made as a Tranche A Loan, a Tranche B Loan or a Tranche C Loan,
(3) the aggregate amount and currency of such proposed Borrowing, (4) whether any portion of the proposed Borrowing will be of ABR Loans, Canadian Prime Rate Loans, Term Benchmark Loans or RFR Loans, and (5) for each Term Benchmark Loan, the initial Interest Period or Interest Periods thereof. Each Borrowing of ABR Loans and Canadian Prime Rate Loans shall be in an aggregate amount of not less than $500,000 or
an integral multiple of $500,000 in excess thereof. Each Borrowing of Term Benchmark Loans shall be in an aggregate amount of not less than the Dollar Equivalent of
$1,000,000 or an integral multiple of the Dollar Equivalent of $1,000,000 in excess thereof.
(vi)The Administrative Agent shall give to each applicable Lender prompt notice of the Administrative Agent’s receipt of a Funding Notice and, if Term Benchmark Loans are properly requested in such Funding Notice, the applicable interest rate determined pursuant to Section 2.17(a). Each Lender shall, before 11:00 a.m. (Local Time) (or, with respect to a same day Borrowings, 2:00 p.m. (Local Time)) on the date of the proposed Borrowing, make available to the Administrative Agent at its Principal Office, in immediately available funds, such Lender’s Pro Rata Share of such proposed Borrowing. Subject to fulfillment (A) on the Closing Date, of the applicable conditions set forth in Section 3.1 and (B) at any time (including the Closing Date), of the applicable conditions set forth in Section 3.2, and after the Administrative Agent’s receipt of such funds, the Administrative Agent shall make such funds available to the applicable Borrower; provided that Protective Advances shall be retained by the Administrative Agent and disbursed in its discretion.
(vii)Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing that such Lender will not make available to the Administrative Agent such Lender’s Pro Rata Share of such Borrowing (or any portion thereof), the Administrative Agent may assume that such Lender has made such Pro Rata Share available to the Administrative Agent on the date of such Borrowing in accordance with this Section 2.1(b) and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Pro Rata Share available to the Administrative Agent, such Lender and the applicable Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (A) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (B) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the first Business Day and thereafter at the interest rate applicable at the time to the Loans comprising such Borrowing. If such Lender shall repay to the Administrative Agent such corresponding amount, such corresponding amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Administrative Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have hereunder to such Borrower.
(viii)The failure of any Defaulting Lender to make on the date specified any Loan or any payment required by it, including any payment in respect of its participation in Swing Line Loans and Letter of Credit Obligations, shall not relieve any other Lender of its obligations to make such Loan or payment on such date but no such other Lender shall be responsible for the failure of any Defaulting Lender to make a Loan or payment required under this Agreement.
2.2Swing Line Loans.
(a)On the terms and subject to Section 2.21 and the other conditions contained in this Agreement, the Tranche A Swing Line Lender may elect in its sole discretion to make to the Parent Borrower, in Dollars, Loans (each, a “Tranche A Swing Line Loan”) otherwise available to the Parent Borrower under the Revolving Credit Facility from time to time on any Business Day during the Revolving Commitment Period in an aggregate principal amount at any time outstanding that (i) will not to exceed the lesser of (a) the Parent Borrower Tranche A Available Credit and (b) the Tranche A Swing Line Sublimit and (ii) unless waived by the Tranche A Swing Line Lender in its sole discretion, will not result in such Tranche A Swingline Lender’s Tranche A Revolving Credit Exposure exceeding its Tranche A Revolving Commitment, subject, in each case, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.24. Each Tranche A Swing Line Loan shall be a ABR Loan and must be repaid in full within seven days after its making or, if sooner, upon any Borrowing of Tranche A Loans hereunder, and shall in any event mature no later than the Revolving Commitment Termination Date. Within the limits set forth in the first sentence of this clause (a), amounts of Tranche A Swing Line Loans repaid may be reborrowed under this clause (a).
(b)In order to request a Swing Line Loan, the Parent Borrower shall deliver by hand, fax or email to the Administrative Agent a duly completed request in substantially the form of Exhibit A-4 (a “Swing Line Request”), setting forth the requested amount and date of such Swing Line Loan, to be received by the Administrative Agent not later than 1:00 p.m. (Local Time) on the day of the proposed Borrowing. The Administrative Agent shall promptly notify the applicable Swing Line Lender of the details of the requested Swing Line Loan. Subject to the terms of this Agreement, the applicable Swing Line Lender shall make a Swing Line Loan available to the Administrative Agent and, in turn, the Administrative Agent shall make such amount available to the Parent Borrower on the date of the relevant Swing Line Request. No Swing Line Lender shall make any Swing Line Loan in the period commencing on the first Business Day after it receives written notice from the Administrative Agent or any Lender that one or more of the conditions precedent contained in Section 3.2 shall not on such date be satisfied, and ending when such conditions are satisfied. No Swing Line Lender shall otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section
3.2 have been satisfied in connection with the making of any Swing Line Loan.
(c)Each Swing Line Lender shall notify the Administrative Agent in writing (which writing may be a telecopy or electronic mail) weekly, by no later than 10:00 a.m. (Local Time) on the first Business Day of each week, of the aggregate principal amount of its Swing Line Loans then outstanding.
(d)Each Swing Line Lender may demand at any time that each Tranche A Lender pay to the Administrative Agent, for the account of such Swing Line Lender, in the manner provided in clause (e) below, such Lender’s Pro Rata Share of all or a portion of the applicable outstanding Swing Line Loans of such Swing Line Lender, which demand shall be made through the Administrative Agent, shall be in writing and shall specify the outstanding principal amount of Swing Line Loans demanded to be paid.
(e)The Administrative Agent shall forward each notice referred to in clause (b) above and each demand referred to in clause (d) above to each Tranche A Lender on the day such notice or such demand is received by the Administrative Agent (except that any such notice or demand received by the Administrative Agent after 2:00 p.m. (Local Time) on any Business Day or any such demand received on a day that is not a Business Day shall not be required to be
forwarded to such Lenders by the Administrative Agent until the next succeeding Business Day), together with a statement prepared by the Administrative Agent specifying the amount of each such Lender’s Pro Rata Share of the aggregate principal amount of the Swing Line Loans stated to be outstanding in such notice or demanded to be paid pursuant to such demand, and, notwithstanding whether or not the conditions precedent set forth in Sections 3.2 and 2.1 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), each Lender shall, before 11:00 a.m. (Local Time) on the Business Day next succeeding the date of such Lender’s receipt of such notice or demand, make available to the Administrative Agent, in immediately available funds, for the account of the applicable Swing Line Lender, the amount specified in such statement. Upon such payment by a Lender, such Lender shall, except as provided in clause (f) below, be deemed to have made an ABR Loan to the Parent Borrower. The Administrative Agent shall use such funds to repay the Swing Line Loans to the applicable Swing Line Lender. To the extent that any Lender fails to make such payment available to the Administrative Agent for the account of the applicable Swing Line Lender, the Parent Borrower shall repay such Swing Line Loan on demand, no later than one Business Day after receiving such demand (it being understood and agreed that in the event of such demand for payment, the Parent Borrower shall be permitted to make a Borrowing of Revolving Loans to satisfy such reimbursement obligation).
(f)Upon the occurrence of a Default under Section 8.1(f) or (g) or at any other time upon the request of the Administrative Agent or a Swing Line Lender, each Lender shall acquire, without recourse or warranty, an undivided participation in each applicable Swing Line Loan otherwise required to be repaid by such Lender pursuant to clause (e) above, which participation shall be in a principal amount equal to such Lender’s Pro Rata Share of such Swing Line Loan, by paying to the applicable Swing Line Lender on the date on which such Lender would otherwise have been required to make a payment in respect of such Swing Line Loan pursuant to clause (e) above, in immediately available funds in the same currency as such Swing Line Loan, an amount equal to such Lender’s Pro Rata Share of such Swing Line Loan. If all or part of such amount is not in fact made available by such Lender to the applicable Swing Line Lender on such date, such Swing Line Lender shall be entitled to recover any such unpaid amount on demand from such Lender together with interest accrued from such date at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation for the first Business Day after such payment was due and thereafter the rate of interest then applicable to ABR Loans.
(g)From and after the date on which any Lender (i) is deemed to have made a Revolving Loan pursuant to clause (e) above with respect to any Swing Line Loan or (ii) purchases an undivided participation interest in a Swing Line Loan pursuant to clause (f) above, the applicable Swing Line Lender shall promptly distribute to such Lender such Lender’s Pro Rata Share of all payments of principal of and interest received by such Swing Line Lender on account of such Swing Line Loan (other than those received from a Lender pursuant to clause (e) or (f) above).
2.3Issuance of Letters of Credit and Purchase of Participations Therein.
(a)On and after the Closing Date on the terms and subject to Section 2.21 and the other conditions contained in this Agreement, each Issuing Bank agrees to issue at the request of Parent Borrower and for the account of the Parent Borrower (or for the account of a Subsidiary of the Parent Borrower, so long as the Parent Borrower and such Subsidiary are co-applicants) one or more Letters of Credit from time to time on any Business Day during the period commencing on the Closing Date and ending on the third day prior to the Revolving Commitment Termination
Date; provided, however, that no Issuing Bank shall be under any obligation to issue (and, upon the occurrence of any of the events described in clauses (ii), (iii), (iv) and (vi)(A) below, shall not issue) any Letter of Credit upon the occurrence of any of the following:
(ix)any order, judgment or decree of any Governmental Authority or arbitrator shall purport by its terms to enjoin or restrain such Issuing Bank from issuing such Letter of Credit or any requirement of law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction or reserve or capital requirement (for which such Issuing Bank is not otherwise compensated) not in effect on the date of this Agreement or result in any unreimbursed loss, cost or expense that was not applicable, in effect or known to such Issuing Bank as of the date of this Agreement and that such Issuing Bank in good faith deems material to it;
(x)such Issuing Bank shall have received any written notice of the type described in clause (d) below;
(xi)after giving effect to the issuance of such Letter of Credit, the applicable aggregate Revolving Credit Outstandings would exceed the applicable Maximum Credit at such time or would result in the breach of any of the Tranche A Borrowing Conditions;
(xii)after giving effect to the issuance of such Letter of Credit (x) the sum of
(i) the Dollar Equivalents of the applicable Letter of Credit Undrawn Amounts at such time and (ii) the Dollar Equivalents of the applicable Reimbursement Obligations at such time, exceeds the applicable Letter of Credit Sublimit or (y) the Dollar Equivalents of the Letter of Credit Undrawn Amounts at such time which relate to Letters of Credit issued by such Issuing Bank plus the Dollar Equivalents of the applicable Reimbursement Obligations at such time which relate to Letters of Credit issued by such Issuing Bank, exceeds the Letter of Credit Sublimit of the applicable Issuing Bank;
(xiii)such Letter of Credit is requested to be denominated in any currency other than an Available Currency; or
(xiv)(A) any fees invoiced and due in connection with a requested issuance have not been paid, (B) such Letter of Credit is requested to be issued in a form that is not reasonably acceptable to such Issuing Bank or (C) the Issuing Bank for such Letter of Credit shall not have received, in form and substance reasonably acceptable to it and, if applicable, duly executed by the Parent Borrower, applications, agreements and other documentation (a “Tranche A Letter of Credit Reimbursement Agreement”) such Issuing Bank generally employs in the ordinary course of its business for the issuance of letters of credit of the type of such Letter of Credit;
subject, in the case of clauses (iii), (iv) and (v) above, to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.24.
None of the Lenders (other than the Issuing Banks in their capacity as such) shall have any obligation to issue any Letter of Credit.
(b)In no event shall the expiration date of any Letter of Credit (i) be more than one year after the date of issuance thereof or (ii) except to the extent such Letter of Credit is cash collateralized or backstopped in a manner satisfactory to the Issuing Bank, be less than three days prior to the applicable Revolving Commitment Termination Date; provided, however, that any Letter of Credit with a term less than or equal to one year may provide for the renewal thereof for additional periods less than or equal to one year, as long as, (x) on or before the expiration of each such term and each such period, the Parent Borrower or the applicable Subsidiary and the Issuing Bank of such Letter of Credit shall have the option to prevent such renewal and (y) except to the extent such Letter of Credit is cash collateralized or backstopped in a manner satisfactory to the Issuing Bank, the Parent Borrower or the applicable Subsidiary shall not permit any such renewal to extend the expiration date of any Letter of Credit beyond the date set forth in clause
(ii) above.
(c)In connection with the issuance of each Letter of Credit, the Parent Borrower shall give the relevant Issuing Bank and the Administrative Agent three Business Days’ prior written notice (or such lesser notice as is acceptable to the applicable Issuing Bank in its sole discretion), which written notice shall be in substantially the form of Exhibit A-3 (or in such other written or electronic form as is acceptable to the applicable Issuing Bank) (an “Issuance Notice”), of the requested issuance of such Letter of Credit. Such notice shall be irrevocable after the form of such Letter of Credit has been agreed and shall specify (i) the Issuing Bank of such Letter of Credit, (ii) the face amount of such Letter of Credit (which shall not be less than an amount, the Dollar Equivalent of which is $15,000 or such lower amount as the Issuing Bank and Administrative Agent may agree), (iii) the currency of such Letter of Credit, which shall be an Available Currency, (iv) the date of issuance of such requested Letter of Credit, (v) the date on which such Letter of Credit is to expire (which date shall be a Business Day) and (vi) in the case of an issuance, the Person for whose benefit the requested Letter of Credit is to be issued. Such notice, to be effective, must be received by the relevant Issuing Bank and the Administrative Agent not later than 11:00 a.m. (Local Time) on the third Business Day prior to the requested issuance of such Letter of Credit.
(d)Subject to the satisfaction of the conditions set forth in this Section 2.3, the relevant Issuing Bank shall, on the requested date, issue a Letter of Credit on behalf of the Parent Borrower in accordance with such Issuing Bank’s usual and customary business practices. No Issuing Bank shall issue any Letter of Credit in the period commencing on the first Business Day after it receives written notice from any Lender that one or more of the conditions precedent contained in Section 3.2 or clause (a) above (other than those conditions set forth in clauses (a)(i), (a)(vi)(B) and (C) above and, to the extent such clause relates to fees owing to the Issuing Bank of such Letter of Credit and its Affiliates, clause (a)(vi)(A) above) are not on such date satisfied or duly waived and ending when such conditions are satisfied or duly waived. No Issuing Bank shall otherwise be required to determine that, or take notice whether, the conditions precedent set forth in Section 3.2 have been satisfied in connection with the issuance of any Letter of Credit.
(e)The Parent Borrower agrees that, if requested by the Issuing Bank of any Letter of Credit issued for the Parent Borrower’s account, it shall execute one applicable Letter of Credit Reimbursement Agreement in respect of all Letters of Credit issued for the Parent Borrower’s account hereunder. In the event of any conflict between the terms of any Letter of Credit Reimbursement Agreement and this Agreement, the terms of this Agreement shall govern.
(f)Each Issuing Bank shall comply with the following:
(xv)give the Administrative Agent written notice (or telephonic notice confirmed promptly thereafter in writing), which writing may be a telecopy or electronic mail, of the issuance of any Letter of Credit issued by it, of all drawings under any Letter of Credit issued by it and of the payment (or the failure to pay when due) by the Parent Borrower of any Reimbursement Obligation when due (which notice the Administrative Agent shall promptly transmit by telecopy, electronic mail or similar transmission to each Lender);
(xvi)upon the request of any Lender, furnish to such Lender copies of any applicable Letter of Credit Reimbursement Agreement to which such Issuing Bank is a party and such other documentation as may reasonably be requested by such Lender; and
(xvii)no later than 10 Business Days following the last day of each calendar month, provide to the Administrative Agent (and the Administrative Agent shall provide a copy to each Lender requesting the same) and the Parent Borrower separate schedules for standby letters of credit issued by it, in form and substance reasonably satisfactory to the Administrative Agent, setting forth the aggregate Letter of Credit Obligations, in each case outstanding at the end of each month, and any information requested by the Parent Borrower or the Administrative Agent relating thereto.
(g)Immediately upon the issuance by an Issuing Bank of a Letter of Credit in accordance with the terms and conditions of this Agreement, such Issuing Bank shall be deemed to have sold and transferred to each Tranche A Lender and each such Tranche A Lender shall be deemed irrevocably and unconditionally to have purchased and received from such Issuing Bank, without recourse or warranty, an undivided interest and participation, to the extent of such Lender’s Pro Rata Share, in such Letter of Credit and the obligations of the Parent Borrower with respect thereto (including all Letter of Credit Obligations with respect thereto) and any security therefor and guaranty pertaining thereto.
(h)The Parent Borrower agrees to pay to the applicable Issuing Bank of any Letter of Credit the amount of all Reimbursement Obligations owing to such Issuing Bank under any Letter of Credit issued for the account of the Parent Borrower no later than the date that is the next succeeding Business Day after the Parent Borrower receive written notice from such Issuing Bank that payment has been made under such Letter of Credit (the “Reimbursement Date”), irrespective of any claim, setoff, defense or other right that the Parent Borrower may have at any time against such Issuing Bank or any other Person. In the event that any Issuing Bank makes any payment under any Letter of Credit and the Parent Borrower shall not have repaid such amount to such Issuing Bank pursuant to this clause (h) or any such payment by the Parent Borrower is rescinded or set aside for any reason, such Reimbursement Obligation shall be payable on demand with interest thereon computed (i) from the date on which such Reimbursement Obligation arose to the Reimbursement Date, at the rate of interest applicable during such period to Revolving Loans that are ABR Loans (in the case of Letters of Credit requested to be denominated in Dollars), Revolving Loans that are Canadian Prime Rate Loans (in the case of Letters of Credit requested to be denominated in Canadian Dollars), Revolving Loans that are RFR Loans (in the case of Letters of Credit requested to be denominated in Pounds Sterling) or Revolving Loans that are Term Benchmark Loans with an Interest Period of one month (in the case of Letters of Credit requested to be denominated in any Available Currency other than Dollars, Canadian Dollars and Pounds Sterling) and (ii) from the Reimbursement Date until the date of repayment in full, at the rate of interest applicable during such period to past due Revolving Loans that are ABR Loans (in the case of Letters of Credit requested to be denominated in Dollars), Revolving Loans that are Canadian Prime Rate Loans (in the case of
Letters of Credit requested to be denominated in Canadian Dollars), Revolving Loans that are RFR Loans (in the case of Letters of Credit requested to be denominated in Pounds Sterling) or Revolving Loans that are Term Benchmark Loans with an Interest Period of one month (in the case of Letters of Credit requested to be denominated in any Available Currency other than Dollars, Canadian Dollars and Pounds Sterling) and such Issuing Bank shall promptly notify the Administrative Agent, which shall promptly notify each Tranche A Lender of such failure, and each Tranche A Lender shall promptly and unconditionally pay to the Administrative Agent for the account of such Issuing Bank the amount of such Lender’s Pro Rata Share of such payment in immediately available funds in the same currency as the applicable Letter of Credit; provided that in the case of each Letter of Credit denominated in an Alternative Currency, such payment shall be made in Dollars in the amount of the Dollar Equivalent of such Alternative Currency Amount. If the Administrative Agent so notifies such Lender prior to 11:00 a.m. (Local Time) on any Business Day, such Lender shall make available to the Administrative Agent for the account of such Issuing Bank its Pro Rata Share of the amount of such payment on such Business Day in immediately available funds. Upon such payment by a Lender, such Lender shall, except during the continuance of a Default or Event of Default under Section 8.1(f) or (g) and notwithstanding whether or not the conditions precedent set forth in Section 3.2 shall have been satisfied (which conditions precedent the Lenders hereby irrevocably waive), be deemed to have made a Tranche A Loan to the Parent Borrower in the principal amount of such payment and the Parent Borrower’s Reimbursement Obligations shall be reduced by the amount of such deemed Revolving Loans. Whenever any Issuing Bank receives from the Parent Borrower a payment of a Reimbursement Obligation as to which the Administrative Agent has received for the account of such Issuing Bank any payment from a Lender pursuant to this clause (h), such Issuing Bank shall pay over to the Administrative Agent any amount received in excess of such Reimbursement Obligation and, upon receipt of such amount, the Administrative Agent shall promptly pay over to each Lender, in immediately available funds, an amount equal to such Lender’s Pro Rata Share of the amount of such payment adjusted, if necessary, to reflect the respective amounts the Lenders have paid in respect of such Reimbursement Obligation.
(i)If and to the extent a Lender shall not have so made its Pro Rata Share of the amount of the payment required by clause (g) above available to the Administrative Agent for the account of such Issuing Bank, such Lender agrees to pay to the Administrative Agent for the account of such Issuing Bank forthwith on demand any such unpaid amount together with interest thereon, for the first Business Day after payment was first due at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and, thereafter, until such amount is repaid to the Administrative Agent for the account of such Issuing Bank, in the case of any Tranche A Letter of Credit requested by the Parent Borrower, at a rate per annum equal to the rate applicable to ABR Loans (in the case of Letters of Credit requested to be denominated in Dollars), Revolving Loans that are Canadian Prime Rate Loans (in the case of Letters of Credit requested to be denominated in Canadian Dollars) or Revolving Loans that are Term Benchmark Loans with an Interest Period of one month (in the case of Letters of Credit requested to be denominated in any Available Currency other than Dollars and Canadian Dollars), as applicable.
(j)The Parent Borrowers’ obligation to pay its Reimbursement Obligation and the obligations of the applicable Lenders to make payments to the Administrative Agent for the account of the applicable Issuing Banks with respect to Letters of Credit shall be absolute, unconditional and irrevocable and shall be performed strictly in accordance with the terms of this Agreement, under any and all circumstances whatsoever, including the occurrence of any Default or Event of Default, and irrespective of any of the following:
(xviii)any lack of validity or enforceability of any Letter of Credit or any Credit Document, or any term or provision therein;
(xix)any amendment or waiver of or any consent to departure from all or any of the provisions of any Letter of Credit or any Credit Document;
(xx)the existence of any claim, setoff, defense or other right that any Borrower, any other party guaranteeing, or otherwise obligated with, any Borrower, any Subsidiary or other Affiliate thereof or any other Person may at any time have against the beneficiary under any Letter of Credit, any Issuing Bank, any Agent or any Lender or any other Person, whether in connection with this Agreement, any other Credit Document or any other related or unrelated agreement or transaction;
(xxi)any draft or other document presented under a 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;
(xxii)in the absence of gross negligence or willful misconduct of the Issuing Bank, and subject to the standards set forth below in this clause (j), payment by the Issuing Bank under a Letter of Credit against presentation of a draft or other document that does not strictly comply with the terms of such Letter of Credit;
(xxiii)any other act or omission to act or delay of any kind of the Issuing Bank, the Lenders, any Agent or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.3, constitute a legal or equitable discharge of the Parent Borrower’s obligations hereunder, other than acts, omissions or delays that are caused by gross negligence or willful misconduct of the Issuing Bank; and
(xxiv)any adverse change in the relevant exchange rates or in the availability of the relevant Alternative Currency to the Parent Borrower or any Subsidiary or in the relevant currency markets generally.
Any action taken or omitted to be taken by the relevant Issuing Bank under or in connection with any Letter of Credit, if taken or omitted in the absence of gross negligence or willful misconduct, shall not result in any liability of such Issuing Bank to the Parent Borrower or any Lender. In determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof, the Issuing Bank 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, in making any payment under any Letter of Credit, the Issuing Bank may rely exclusively on the documents presented to it under such Letter of Credit as to any and all matters set forth therein, including reliance on the amount of any draft presented under such Letter of Credit, whether or not the amount due to the beneficiary thereunder equals the amount of such draft and whether or not any document presented pursuant to such Letter of Credit proves to be insufficient in any respect, if such document on its face appears to be in order, and whether or not any other statement or any other document presented pursuant to such Letter of Credit proves to be forged or invalid or any statement therein proves to be inaccurate or untrue in any respect whatsoever, and any noncompliance in any immaterial respect of the documents presented under such Letter of Credit with the terms thereof shall, in each case, be deemed not to constitute willful misconduct or gross negligence of the Issuing Bank.
(k)Schedule 2.3(k) contains a schedule of certain letters of credit issued under the Existing Credit Agreement (the “Existing Letters of Credit”) for the account of the Parent Borrower or any of their Subsidiaries by the issuers set forth on such Schedule 2.3(k). On the Closing Date, (i) such letters of credit, to the extent outstanding, shall be automatically and without further action by the parties thereto converted to Tranche A Letters of Credit issued pursuant to this Section 2.3 for the account of Parent Borrower and subject to the provisions hereof, and for this purpose the fees specified in Section 2.10 shall be payable (in substitution for any fees set forth in the applicable letter of credit reimbursement agreements or applications relating to such letters of credit) as if such letters of credit had been issued on the Closing Date,
(ii) the issuing banks of such letters of credit shall be Lenders hereunder and shall be “Issuing Banks” hereunder for the purpose of maintaining such letters of credit, for purposes of Section
2.19 relating to the obligation to provide the appropriate forms, certificates and statements to the Parent Borrower and the Administrative Agent and any updates required by Section 2.19 and for purposes of Section 2.6 relating to the entries to be made in the Register, (iii) the Dollar Equivalent of the face amount of such letters of credit shall be included in the calculation of Tranche A Letter of Credit Outstandings and (iv) all liabilities of the Parent Borrower or any of its Subsidiaries with respect to such letters of credit shall constitute Obligations.
(l)The Parent Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the account of a Subsidiary of the Parent Borrower as provided in Section 2.3(a), the Parent Borrower will be fully responsible for the reimbursement of Reimbursement Obligations in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under Section 2.10(b) to the same extent as if it were the sole account party in respect of such Letter of Credit (the Parent Borrower hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor or surety of the obligations of such Subsidiary that is an account party in respect of any such Letter of Credit).
2.4Pro Rata Shares. Subject to Section 2.21, all Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
2.5Resignation of Issuing Bank. Any Issuing Bank may resign at any time upon 30 days’ prior written notice to the Administrative Agent and the Parent Borrower. On the effective date of such resignation, such Issuing Bank shall have no further obligation to issue, amend, renew, extend or otherwise modify any Letter of Credit previously issued by it, but shall continue to have all the rights and obligations of an Issuing Bank hereunder, including under Sections 2.3, 2.7, 2.12, 2.19, 2.20, 10.3 and
10.5 relating to any Letter of Credit issued by such Issuing Bank prior to such date. The foregoing notwithstanding, if such resignation would result in there being no Issuing Bank, then the Parent Borrower shall promptly appoint a replacement Issuing Bank reasonably acceptable to the Administrative Agent and such resignation shall not be effective until the acceptance of such appointment by the replacement Issuing Bank.
2.6Evidence of Debt; Register; Lenders’ Books and Records; Notes.
(a)Lenders’ Evidence of Debt. Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of each Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof. Any
such recordation shall be presumptively correct, absent manifest error and constitute conclusive evidence (including within the meaning of section 151 Dutch Code of Civil Procedure); provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or any Borrower’s Obligations in respect of any applicable Loans; and provided further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
(b)Register. The Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at its Principal Office a register for the recordation of the names and addresses of the Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register”). The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by any Borrower or any Lender (with respect to a Lender, solely with respect to the Obligations owing to such Lender) at any reasonable time and from time to time upon reasonable prior notice. The Administrative Agent shall record, or shall cause to be recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans, and any such recordation shall be presumptively correct, absent manifest error; provided failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or any Borrower’s Obligations in respect of any Loan. Each Borrower hereby designates JPMorgan to serve as its agent solely for purposes of maintaining the Register as provided in this Section 2.6, and each Borrower hereby agrees that, to the extent JPMorgan serves in such capacity, JPMorgan and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”
(c)Notes. If so requested by any Lender by written notice to the applicable Borrower (with a copy to the Administrative Agent) at least three Business Days prior to the Closing Date, or at any time thereafter, such Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after such Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Revolving Loan or Swing Line Loan, as the case may be.
(d)Spanish Acknowledgment of Debt. Any Spanish Credit Party shall promptly, and in any event within 10 Business Days following a request by the Administrative Agent, which may but (unless requested to do so by any Lender) shall not be obliged to make any request, provide the Administrative Agent (in favor of the Lenders) with a notarised acknowledgement of debt (acta de reconocimiento de deuda) duly formalized as a Spanish Public Document provided that the request of the Administrative Agent shall only be made (i) not more than once in each financial year and (ii) at any time during an Event of Default which is continuing.
2.7Interest on Loans.
(a)Except as otherwise set forth herein, each Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
(xxv)in the case of Tranche A Loans:
(1)if an ABR Loan, at the ABR plus the Applicable Margin;
(2)if a Term Benchmark Loan, at the Adjusted Term SOFR Rate or the CDOR Rate, as appliable, plus the Applicable Margin;
(3)if a RFR Loan, at the applicable Adjusted Daily Simple RFR
plus the Applicable Margin; or
(4)if a Canadian Prime Rate Loan, at the Canadian Prime Rate plus
the Applicable Margin;
(xxvi)in the case of Tranche B Loans:
(1)if an ABR Loan, at the ABR plus the Applicable Margin;
(2)if a Term Benchmark Loan, at the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate, as appliable, plus the Applicable Margin; or
(3)if a RFR Loan, at the applicable Adjusted Daily Simple RFR
plus the Applicable Margin;
(xxvii)in the case of Tranche C Loans:
(1)if an ABR Loan, at the ABR plus the Applicable Margin;
(2)if a Term Benchmark Loan, at the Adjusted Term SOFR Rate or the Adjusted EURIBOR Rate, as appliable, plus the Applicable Margin; or
(3)if a RFR Loan, at the applicable Adjusted Daily Simple RFR
plus the Applicable Margin;
(xxviii)in the case of Tranche A Swing Line Loans, at the ABR plus the Applicable Margin; and
(xxix)in the case of Tranche A Protective Advances, at the ABR plus the Applicable Margin.
(b)The basis for determining the rate of interest with respect to any Loan (it being understood that (i) Tranche A Swing Line Loans and Tranche A Protective Advances can be made and maintained as ABR Loans only, (ii) subject to Section 2.25, Tranche A Loans can be made and maintained as ABR Loans, Canadian Prime Rate Loans or Term Benchmark Loans only, (iii) subject to Section 2.25, Tranche B Loans can be made and maintained as ABR Loans (with respect to Tranche B Loans denominated in Dollars) and Term Benchmark Loans only, and
(iv) subject to Section 2.25, Tranche C Loans can be made and maintained as ABR Loans (with respect to Tranche B Loans denominated in Dollars), Term Benchmark Loans or RFR Loans (with respect to Tranche B Loans denominated in Pounds Sterling) only), and the Interest Period with respect to any Term Benchmark Loan, shall be selected by the applicable Borrower and notified to the Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be. If the applicable Borrower fails to deliver a timely Conversion/Continuation Notice with respect to (i) a Term Benchmark Borrowing in Dollars prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to an ABR Borrowing or (ii) a Term Benchmark Borrowing in Canadian Dollars to prior to the end
of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, at the end of such Interest Period such Borrowing shall be converted to a Canadian Prime Rate Borrowing. If the applicable Borrower fails to deliver a timely and complete Conversion/Continuation Notice with respect to a Term Benchmark Borrowing denominated in an Available Currency (other than (i) in Dollars or (ii) in Canadian Dollars) prior to the end of the Interest Period therefor, then, unless such Term Benchmark Borrowing is repaid as provided herein, the Borrower shall be deemed to have selected that such Term Benchmark Borrowing shall automatically be continued as a Term Benchmark Borrowing in its original Agreed Currency with an Interest Period of one month at the end of such Interest Period. Notwithstanding any contrary provision hereof, if an Event of Default has occurred and is continuing and the Administrative Agent, at the request of the Required Lenders, so notifies the Parent Borrower, then, so long as an Event of Default is continuing (i) no outstanding Borrowing may be converted to or continued as a Term Benchmark Borrowing and (ii) unless repaid, (w) each Term Benchmark Borrowing denominated in Dollars to the US Borrowers shall be converted to an ABR Borrowing at the end of the Interest Period applicable thereto, (x) each Term Benchmark Borrowing denominated in Canadian Dollars shall be converted to a Canadian Prime Rate Borrowing at the end of the Interest Period applicable thereto (y) each Term Benchmark Borrowing and each RFR Borrowing to any European Borrower denominated in Dollars shall either (A) bear interest at an Alternate Rate at the end of the Interest Period or Interest Payment Date applicable thereto, or (B) be prepaid at the end of the Interest Period or Interest Payment Date applicable thereto, in full; provided that if no election is made by the Borrowers by the earlier of (I) the date that is three Business Days after receipt by the Parent Borrower of such notice and (II) the last day of the current Interest Period for the applicable Term Benchmark Loan, the Borrowers shall be deemed to have elected clause (A) above and (z) each Term Benchmark Borrowing and each RFR Borrowing denominated in an Alternative Currency (other than in Canadian Dollars), shall bear interest at the Central Bank Rate for the applicable Available Currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable Available Currency cannot be determined, any outstanding affected Term Benchmark Loans or RFR Loans, shall either (A) bear interest at an Alternate Rate at the end of the Interest Period, as applicable, therefor or (B) be prepaid at the end of the applicable Interest Period, as applicable, in full; provided that if no election is made by the Borrowers by the earlier of (I) the date that is three Business Days after receipt by the applicable Borrower of such notice and (II) the last day of the current Interest Period for the applicable Term Benchmark Loan, the Borrowers shall be deemed to have elected clause (A) above.
(c)In connection with Tranche A Term Benchmark Loans, Tranche B Term Benchmark Loans and Tranche C Term Benchmark Loans, taken together, there shall be no more than fifteen (15) Interest Periods outstanding at any time. In the event the Parent Borrower fails to specify between an ABR Loan, Canadian Prime Rate Loan, Term Benchmark Loan or RFR Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (i) if outstanding as a Term Benchmark Loan in Dollars, will be automatically converted into an ABR Loan at the end of the applicable Interest Period on the last day of the then-current Interest Period for such Loan, (ii) if outstanding as a Term Benchmark Loan in Canadian Dollars, will be automatically converted into a Canadian Prime Rate Loan at the end of the applicable Interest Period on the last day of the then-current Interest Period for such Loan, (iii) if outstanding as a Term Benchmark Loan in an Available Currency (other than Dollars and Canadian Dollars), will be made as a Term Benchmark Loan with an Interest Period of one month (iv) if outstanding as an ABR Loan will remain as an ABR Loan, if outstanding as a Canadian Prime Rate Loan will remain as a Canadian Prime Rate Loan and if outstanding as an RFR Loan denominated in Pounds Sterling, will remain as an RFR Loan, and (v) if not outstanding, will be made (A) in the
case of a Loan denominated in Pounds Sterling, as an RFR Loan and (B) in all other cases, as a Term Benchmark Loan with an Interest Period of one month. In the event the Parent Borrower fails to specify an Interest Period for any Term Benchmark Loan in the applicable Funding Notice or Conversion/Continuation Notice, the Parent Borrower shall be deemed to have selected an Interest Period of one month. On each Interest Payment Date, as soon as practicable after 11:00
a.m. (Local Time) the Administrative Agent shall determine (which determination shall be final, conclusive and binding upon all parties in the absence of manifest error) the interest rate that shall apply to each Term Benchmark Loan for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Parent Borrower and each Lender.
(d)All interest payable pursuant to Section 2.7(a) shall be computed on the basis of a 360-day year, except that (i) interest computed by reference to the Alternate Base Rate only at times when the Alternate Base Rate is based on the Prime Rate and interest computed by reference to the Canadian Prime Rate or the CDOR Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and (ii) interest computed by reference to the Daily Simple RFR with respect to Pounds Sterling shall be computed on the basis of a year of 365 days, in each case for the actual number of days elapsed in the period during which it accrues (including the first day but excluding the last day). In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a ABR Loan or Canadian Prime Rate Loan being converted from a Term Benchmark Loan, the date of such conversion from such Term Benchmark Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a ABR Loan or Canadian Prime Rate Loan being converted to a Term Benchmark Loan, the date of conversion to such Term Benchmark Loan, as the case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
(e)Except as otherwise set forth herein, interest on each Revolving Loan made to the Borrowers (A) shall accrue on a daily basis and shall be payable by the applicable Borrower in arrears on each Interest Payment Date with respect to interest accrued on and to each such payment date; (B) shall accrue on a daily basis and shall be payable by the applicable Borrower in arrears upon any prepayment of such Tranche A Loan, Tranche B Loan or Tranche C Loan whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (C) shall accrue on a daily basis and shall be payable by the applicable Borrower in arrears at maturity of such Revolving Loans, including final maturity of the Tranche A Loans, Tranche B Loans or Tranche C Loans; provided, however, with respect to any voluntary prepayment of a ABR Loan or Canadian Prime Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.
(f)The applicable Borrower agrees to pay to each applicable Issuing Bank, with respect to drawings honored under any Letter of Credit issued for its account, interest on the amount paid by such Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of the applicable Borrower, including by way of a deemed Tranche A Loan, at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable Reimbursement Date, (w) the Alternate Base Rate, plus the Applicable Margin payable hereunder with respect to ABR Loans (in the case of Tranche A Letters of Credit denominated in Dollars), (x) the Canadian Prime Rate, plus the Applicable Margin payable hereunder with respect to Canadian Prime Rate Loans (in the case of Tranche A Letters of Credit denominated in Canadian Dollars), (y) the Adjusted EURIBOR Rate with an Interest Period of one month, plus the Applicable Margin
payable hereunder with respect to Term Benchmark Loans (in the case of Tranche A Letters of Credit denominated in Euros) or (z) the applicable Adjusted Daily Simple RFR, plus the Applicable Margin payable hereunder with respect to RFR Loans (in the case of Tranche A Letters of Credit denominated in Pounds Sterling), and (ii) thereafter, a rate which is 2% per annum in excess of the applicable rate set forth above in clause (i).
(g)Interest payable pursuant to Section 2.7(f) shall be computed on the basis of a 360-day year for the actual number of days elapsed in the period during which it accrues, except that (i) interest computed by reference to the Alternate Base Rate only at times when the Alternate Base Rate is based on the Prime Rate and interest computed by reference to the Canadian Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year) and (ii) interest computed by reference to the Daily Simple RFR with respect to Pounds Sterling shall be computed on the basis of a year of 365 days, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full. Promptly upon receipt by any Issuing Bank of any payment of interest pursuant to Section 2.7(f), such Issuing Bank shall distribute to each Lender, out of the interest received by such Issuing Bank in respect of the period from the date such drawing is honored to but excluding the date on which such Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit. In the event any Issuing Bank shall have been reimbursed by Lenders for all or any portion of such honored drawing, such Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under Section 2.3(h) or Section 2.3(i), as applicable, with respect to such honored drawing such Lender’s Pro Rata Share of any interest received by Issuing Bank in respect of that portion of such honored drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by the applicable Borrower.
(h)The rates of interest provided for in this Agreement, including this Section 2.7, are minimum interest rates. When entering into this Agreement, the Parties have assumed that the interest payable at the rates set out in this Section or in other Sections of this Agreement, if any, is not and will not become subject to Swiss Withholding Tax. This notwithstanding, if a Tax deduction is required by Swiss domestic tax law in respect of any interest payable by any Credit Party under a Credit Document and should it be unlawful for any Swiss Borrower to comply with Section 2.19 for any reason, where this would otherwise be required by the terms of Section 2.19, then (i) the applicable interest rate in relation to that interest payment shall be the interest rate which would have applied to that interest payment as provided for by this Section 2.7 divided by one minus the rate at which the relevant Tax deduction is required to be made under Swiss domestic tax law and/or applicable double taxation treaties (where the rate at which the relevant Tax deduction is required to be made is for this purpose expressed as a fraction of one); and
(ii) such Credit Party shall (A) pay the relevant interest at the adjusted rate in accordance with paragraph (i) above and (B) make the Tax deduction on the interest so recalculated, and all references to a rate of interest under the Credit Documents shall be construed accordingly.
(i)Effective Global Rate (Taux Effectif Global). All Credit Parties acknowledge that, by virtue of certain characteristics of this Agreement (in particular the floating rates of interest and the adjustment of the Applicable Margin applicable to the Loans, the French Borrowers’ right to select the duration of each Interest Period and the uncertainty as to the amount to be effectively drawn from time to time under the Loans), for the purpose of articles
L. 314-1 to L. 314-5 of the French Consumer Code, article R. 313-1 et seq. of the French Consumer Code and article L. 313-4 of the French Monetary and Financial Code, the taux effectif global (the “TEG”) shall be required to be calculated based on assumptions as to the period rate (taux de période) and the period term (durée de période) and on the assumption that the interest rate and all other fees, costs or expenses payable under this Agreement will be maintained at their original level throughout the term of this Agreement. The calculation of the TEG shall be set out in a TEG letter (the “TEG Letter”) which will be delivered by the Administrative Agent to the French Borrower on the date of the first utilization, on the date of execution of this Agreement and/or from time to time as required by applicable law, and each TEG Letter will form an integral part of this Agreement.
(j)Notwithstanding anything to the contrary herein, it is specified for any purpose whatsoever that no unpaid interest arising on an overdue amount could be compounded with the overdue amount within the meaning of article 1343-2 of the French Civil Code if such interest is due by a French Credit Party for a period of less than one year.
(k)The Parties mutually acknowledge that the rate of interest applicable to Loans to any Italian Borrower under this Agreement or any other Credit Document (including the relevant component of any applicable fee and expense and any default rate of interest) determined as of the date of execution of this Agreement is believed in good faith to be in compliance with the Italian Usury Law. In any event, the Parties agree and accept that if, pursuant to a change in law or in the official interpretation of Italian Usury Law, the rate of interest applicable to a Loan to any Italian Borrower and/or the default rate of interest (if due at such time from any Italian Borrower) at any time is deemed to exceed the maximum rate permitted by Italian Usury Law, then the relevant interest rate or default rate applicable to such Italian Borrower shall be automatically reduced to the maximum admissible interest rate pursuant to such legislation, for the period during which it is not possible to apply the interest rate as originally agreed in this Agreement.
(l)For purposes of disclosure pursuant to the Interest Act (Canada), the annual rates of interest or fees to which the rates of interest or fees provided in this Agreement and the other Credit Documents (and stated herein or therein, as applicable, to be computed on the basis of 360 days or any other period of time less than a calendar year) are equivalent are the rates so determined multiplied by the actual number of days in the applicable calendar year and divided by 360 or such other period of time, respectively.
(m)If any provision of this Agreement or other Collateral Document would oblige any Credit Party to make any payment of interest or other amount payable to any Lender in an amount or calculated at a rate which would be prohibited by law or would result in a receipt by that Lender of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then, notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by applicable law or so result in a receipt by that Lender of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), by reducing the amount or rate of interest, and, thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Lender which would constitute interest for purposes of section 347 of the Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect to all adjustments contemplated thereby, if a Lender shall have received an amount in excess of the maximum permitted by section 347 of the Criminal Code (Canada), the applicable Credit Party shall be entitled to obtain reimbursement from such Lender in an amount equal to such excess and, pending such
reimbursement, such amount shall be deemed to be an amount payable by such Lender to such Credit Party.
2.8Conversion/Continuation of Loans.
(a)Subject to Section 2.17 and so long as no Default or Event of Default shall have occurred and then be continuing, each Borrower shall have the option:
(xxx)to convert at any time all or any part of any Loan to such Borrower equal to (A) in the case of a conversion of a Loan denominated in Dollars to an ABR Loan,
$1,000,000 and integral multiples of $1,000,000 in excess of that amount, (B) in the case of a conversion of a Loan denominated in Canadian Dollars to a Canadian Prime Rate Loan, $1,000,000 and integral multiples of $1,000,000 in excess of that amount and (C) in the case of a conversion to a Term Benchmark Loan, $2,000,000 and integral multiples of $1,000,000 in excess of that amount; provided a Term Benchmark Loan may only be converted on the expiration of the Interest Period applicable to such Term Benchmark Loan unless the applicable Borrower shall pay all amounts due under Section 2.17 in connection with any such conversion; and provided further that the aggregate amount of the Term Benchmark Loans for each Interest Period must be in the amount of at least
$2,000,000 or an integral multiple of $1,000,000 in excess of that amount; or
(xxxi)upon the expiration of any Interest Period applicable to any Term Benchmark Loan, to continue all or any portion of such Loan in a minimum amount equal to $2,000,000 and integral multiples of $1,000,000 in excess of that amount as a Term Benchmark Loan.
(b)The applicable Borrower shall deliver a Conversion/Continuation Notice to the Administrative Agent no later than 10:00 a.m. (Local Time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion of a Loan denominated in Dollars to the US Borrowers to an ABR Loan or a conversion of a Loan denominated in Canadian Dollars to a Canadian Prime Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Term Benchmark Loan). Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Term Benchmark Loans (or telephonic notice in lieu thereof) shall be irrevocable and the applicable Borrower shall be bound to effect a conversion or continuation in accordance therewith.
(c)Notwithstanding anything to the contrary in the foregoing, no conversion to a Term Benchmark Loan in whole or in part shall be permitted at any time at which (i) a Default or Event of Default shall have occurred and be continuing or (ii) the continuation of, or conversion into, a Term Benchmark Loan would violate any provision of Section 2.17 or 2.18.
(d)This section shall not apply to Protective Advances, which may not be converted or continued.
2.9Default Interest. Upon the occurrence and during the continuance of an Event of Default under Section 8.1(a), (f) or (g) the principal amount of all overdue amounts owed hereunder shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable Debtor Relief Laws) payable on demand at a rate that is 2% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable overdue Loans (or, in the case of any such interest, fees or other amounts, at a rate which is 2% per annum in excess of the interest rate
otherwise payable hereunder for ABR Loans). Payment or acceptance of the increased rates of interest provided for in this Section 2.9 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Agent or any Lender. For these purposes and in accordance with Article 317 of the Spanish Commercial Code, if a Spanish Credit Party fails to pay any interest payable by it under a Credit Document on its due date, such interest shall be capitalized and the amount so capitalized shall accrue default interest in accordance with this Section 2.9. The default interest shall also be the post-judgment interest rate for purposes of the provisions of article 576.1 of the Spanish Civil Procedural Law.
2.10Fees.
(a)The Parent Borrower agrees to pay to each Lender:
(xxxii)subject to Section 2.21, an unused commitment fee in an amount equal to
(1) the average of the actual daily difference between (a) the Revolving Commitment of such Lender and (b) the aggregate principal amount of all applicable outstanding Revolving Credit Outstandings owing to such Lender, times (2) the Applicable Revolving Commitment Fee Percentage then in effect; provided that for purposes of calculating the commitment fee pursuant to this clause (i), Swing Line Loans shall not be deemed to be a utilization of the Revolving Commitments; and
(xxxiii)letter of credit fees equal to such Lender’s Pro Rata Share of the product of (A) the Applicable Margin for Loans that are Term Benchmark Loans, times (B) the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).
All fees referred to in this Section 2.10(a) shall be paid to the Administrative Agent at its Principal Office and upon receipt, the Administrative Agent shall promptly distribute to each Lender the amount of such fees owing to it.
(b)Each Borrower agrees to pay directly to each applicable Issuing Bank, for its own account, the following fees:
(A)a fronting fee equal to 0.125% per annum, times the Dollar Equivalent of the average aggregate daily maximum amount available to be drawn under all applicable Letters of Credit issued by such Issuing Bank for the account of such Borrower (determined as of the close of business on any date of determination); and
(B)such customary documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with such Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.
(c)All fees referred to in:
(xxxiv)Section 2.10(a)(i) shall be calculated on the basis of a 360-day year and shall be payable quarterly in arrears on the first Business Day of each quarter during the Revolving Commitment Period, commencing on April 1, 2023 and on the applicable Revolving Commitment Termination Date; and
(xxxv)Section 2.10(a)(ii) and Section 2.10(b) shall be calculated on the basis of a 360-day year and the actual number of days elapsed and shall be payable quarterly in arrears on April 1, July 1, October 1 and January 1 of each year during the Revolving Commitment Period, commencing on April 1, 2023 and ending on the applicable Revolving Commitment Termination Date.
(d)In addition to any of the foregoing fees, the Parent Borrower agrees to pay to the Lead Arrangers and the Agents such other fees in the amounts and at the times separately agreed upon.
2.11Voluntary Prepayments. Each Borrower may prepay the outstanding principal amount of the applicable Revolving Loans and Swing Line Loans in whole or in part at any time; provided, however, that if any prepayment of any Term Benchmark Loan is made by a Borrower other than on the last day of an Interest Period for such Loan, such Borrower shall also pay any amount owing pursuant to Section 2.17(d). Any such voluntary prepayment shall be applied as specified in Section 2.14(a).
2.12Voluntary Revolving Commitment Reductions.
(a)The Parent Borrower may, upon not less than three Business Days’ prior written or telephonic notice (or such shorter notice period as the Administrative Agent may reasonably approve) confirmed in writing to the Administrative Agent (which original written or telephonic notice the Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time terminate in whole or permanently reduce in part, on a pro rata basis between the Tranche A Revolving Commitments, the Tranche B Revolving Commitments and the Tranche C Revolving Commitments, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments will exceed the Revolving Credit Outstandings at the time of such proposed termination or reduction after giving effect to any concurrent repayment (or, with respect to Letter of Credit Obligations, the provision of cash collateral or backstop letters of credit acceptable to the applicable Issuing Bank in an amount equal to 103% of the applicable Letter of Credit Obligations) of applicable Revolving Credit Outstandings; provided any such partial reduction of the Revolving Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
(b)The Parent Borrower’s notice to the Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the applicable Revolving Commitments shall be effective on the date specified in such Borrower’s notice and shall reduce the applicable Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof.
2.13Mandatory Prepayments.
(a)Maximum Credit. Subject to the Administrative Agent’s authority, in its sole discretion, to make Protective Advances pursuant to the terms of Section 2.24, promptly (but in no event later than two (2) Business Days) upon the earlier of (a) the knowledge of any Authorized Officer of Parent Borrower, or (b) notice to any Borrower from the Administrative Agent that (w) the aggregate principal amount of applicable Tranche A Revolving Credit Outstandings exceeds the applicable Tranche A Maximum Credit at such time, (x) the Dollar Equivalent of the aggregate principal amount of applicable Tranche B Revolving Credit Outstandings exceeds the applicable Tranche B Maximum Credit at such time, (y) the Dollar Equivalent of the aggregate principal amount of applicable Tranche C Revolving Credit
Outstandings exceeds the applicable Tranche C Maximum Credit at such time or (z) a Borrower is in breach of any of the Borrowing Conditions, the applicable Borrower shall forthwith prepay the Swing Line Loans first and then the Revolving Loans of the applicable Tranche then outstanding in an amount equal to such excess. If any such excess remains after repayment in full of the applicable aggregate outstanding Swing Line Loans and Revolving Loans, the applicable Borrower shall cash collateralize applicable Letters of Credit in the manner set forth in Section 8.2 in an amount equal to 103% of such excess.
(b)Cash Dominion During a Global Liquidity Event Period. Each Borrower hereby irrevocably waives the right to direct, during a Global Liquidity Event Period, the application of all funds in each Cash Collateral Account and agrees that, subject to the Intercreditor Agreement, the Administrative Agent, (i) may or, upon the written direction of the Required Lenders at any time during such Global Liquidity Event Period, shall deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and (ii) the Administrative Agent shall, during a Global Liquidity Event Period, except, as provided in Sections 2.15(g) and (h), apply all payments in respect of any Obligations and all available funds (net of such minimum balance, if any, required by the Deposit Account Banks at which each Approved Deposit Account is maintained (not to exceed $10,000 per Approved Deposit Account and $100,000 in the aggregate); provided that no Agent shall be obligated to monitor any such minimum balance requirement and, for the avoidance of doubt, shall be entitled to request a sweep of all available funds) in each Cash Collateral Account on a daily basis as follows: first, to prepay any Protective Advances that may be outstanding, pro rata; second, to repay the outstanding principal amount of the applicable Swing Line Loans until such Swing Line Loans have been repaid in full; third, to repay the outstanding principal balance of the applicable Revolving Loans until such Revolving Loans shall have been repaid in full (other than Contingent Obligations); and then to any other Obligation owing by such Borrower then due and payable. Any such application of funds shall be made (i) from Cash Collateral Accounts of the US Credit Parties and Canadian Credit Parties first in respect of Obligations of the US Credit Parties and Canadian Credit Parties under each Tranche ratably in accordance with the then outstanding amounts thereof and second in respect of Obligations of the European Borrowers under each Tranche ratably in accordance with the outstanding amounts thereof and (ii) from Cash Collateral Accounts of the European Borrowers and shall be made first in respect of Obligations of the European Borrowers under the applicable Tranche under which such European Borrowers are a Borrower ratably in accordance with the outstanding amounts thereof, second in relation to the obligations of the European Borrowers under the other Tranches ratably in accordance with the outstanding amounts thereof and third in respect of the Obligations of the US Credit Parties and Canadian Credit Parties under each Tranche ratably in accordance with the outstanding amounts thereof. In addition, during and following a Global Liquidity Event Period, the Administrative Agent shall have the right (i) to require that notice of the security interests created by each applicable European Collateral Document over the Accounts of the European Borrowers be served on each relevant Account Debtor and that, further, the Administrative Agent shall have the right to require that a notice relating to such security interests is set forth on all relevant invoices (or equivalent) of each European Borrower sent to such Account Debtors and (ii) to exercise any rights it has in relation to any European Borrower’s bank accounts pursuant to the European Collateral Documents to block and/or effect redirection of moneys to new accounts. If (i) following such application, (ii) outside of a Global Liquidity Event Period or (iii) after all Letters of Credit shall have expired or been fully drawn and all Revolving Commitments shall have been terminated, there are no Loans outstanding and no other Obligations (other than Contingent Obligations) that are then due and payable (and, during a Global Liquidity Event Period, cash collateral has been provided in an amount equal to 103% of the Letter of Credit Obligations in the manner required in Section 8.2), then the Administrative Agent shall cause any remaining funds in the Cash Collateral Accounts to
be paid at the written direction of the applicable Borrower (or, in the absence of such direction, to the applicable Borrower or another Person lawfully entitled thereto).
(c)Prepayment of Obligations by European Credit Party. Notwithstanding anything in this Section 2.13 to the contrary, funds received from or held by any European Credit Party shall be applied subject to Section 7.17 and limits on Section 10.22 (the “European Limitations”).
2.14Application of Prepayments.
(a)Application of Voluntary Prepayments by Type of Loans. Any prepayment of any Loan pursuant to Section 2.11 shall be applied as specified by the applicable Borrower in the applicable notice of prepayment; provided, in the event such Borrower fails to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied first, to repay the applicable outstanding Swing Line Loans of such Borrower to the full extent thereof; and second, to repay the applicable outstanding Revolving Loans of such Borrower to the full extent thereof and any prepayments by a European Credit Party shall be subject to the European Limitations.
(b)Application of Prepayments of Loans to ABR Loans, Canadian Prime Rate Loans and Term Benchmark Loans. Any prepayment by a Borrower of Loans (i) denominated in Dollars shall be applied first to ABR Loans of such Borrower to the full extent thereof before application to Term Benchmark Loans of such Borrower, and (ii) denominated in Canadian Dollars shall be applied first to Canadian Prime Rate Loans of such Borrower to the full extent thereof before application to Term Benchmark Loans of such Borrower, in each case in a manner which minimizes the amount of any payments required to be made by the Parent Borrower pursuant to Section 2.17(d).
2.15General Provisions Regarding Payments.
(a)All payments by a Borrower of principal, interest, fees and other Obligations shall be made in the currency in which the obligation being paid is denominated in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to the Applicable Agent not later than 1:00 p.m. (Local Time) on the date due at the Principal Office designated by the Applicable Agent for the account of the Lenders; for purposes of computing interest and fees, funds received by the Applicable Agent after that time on such due date shall be deemed to have been paid by such Borrower on the next succeeding Business Day.
(b)All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid.
(c)The Applicable Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including, without limitation, all fees payable with respect thereto, to the extent received by the Applicable Agent.
(d)Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes ABR Loans or
Canadian Prime Rate Loans in lieu of its Pro Rata Share of any Term Benchmark Loans, the Applicable Agent shall give effect thereto in apportioning payments received thereafter.
(e)Subject to the provisos set forth in the definition of “Interest Period” as they may apply to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.
(f)The Applicable Agent shall deem any payment by or on behalf of a Borrower hereunder that is not made in same day funds prior to 1:00 p.m. (Local Time) to be a non-conforming payment. Any such payment shall not be deemed to have been received by the Applicable Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day. The Applicable Agent shall give prompt telephonic notice to such Borrower and each Lender (confirmed in writing) if any payment is non-conforming. Any non-conforming payment may constitute or become a Default or Event of Default in accordance with the terms of Section 8.1(a), subject to any applicable grace or cure periods therein. Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.9 from the date such amount was due and payable until the date such amount is paid in full (other than Contingent Obligations).
(g)Except for payments and other amounts received by the Applicable Agent and applied in accordance with the provisions of clause (h) below (or required to be applied in accordance with Section 2.14(a)), all payments and any other amounts received by the Applicable Agent from or for the benefit of each Borrower shall be applied as follows: first, to pay principal of, and interest on, any portion of the Tranche A Loans, Tranche B Loans or Tranche C Loans the Applicable Agent may have advanced pursuant to the express provisions of this Agreement on behalf of any Lender, for which the Applicable Agent has not then been reimbursed by such Lender or such Borrower; second, to pay all other Obligations then due and payable; and third, as such Borrower so designates. Payments in respect of Swing Line Loans received by the Applicable Agent shall be distributed to the applicable Swing Line Lender; payments in respect of Revolving Loans received by the Applicable Agent shall be distributed to each Lender in accordance with such Lender’s Pro Rata Share; and all payments of fees and all other payments in respect of any other Obligation shall be allocated among such of the Lenders and Issuing Banks as are entitled thereto and, for such payments allocated to the Lenders, in proportion to their respective Pro Rata Shares.
(h)Each Borrower hereby irrevocably waives the right to direct the application of any and all payments in respect of the Obligations and any proceeds of Collateral after the occurrence and during the continuance of an Event of Default and agrees that, subject to the Intercreditor Agreement, notwithstanding the provisions of Section 2.14(a) and clause (g) above, if an Event of Default shall have occurred and not otherwise been waived, the Applicable Agent may, and, upon either (A) the written direction of the Required Lenders or (B) the acceleration of the applicable Obligations pursuant to Section 8.1, shall, deliver a Blockage Notice to each Deposit Account Bank for each Approved Deposit Account and apply all payments in respect of any applicable Obligations and all funds on deposit in any Cash Collateral Account and all other proceeds of Collateral in the following order:
(i)first, to pay ratably interest on and then principal of any portion of the applicable Revolving Loans that the Applicable Agent may have advanced on behalf of any Lender for which the Applicable Agent has not then been reimbursed by such Lender or the applicable Borrower;
(ii)second, to pay ratably applicable Obligations in respect of any expense reimbursements or indemnities and Facility Cash Management Obligations then due to any Agent;
(iii)third, to pay ratably applicable Obligations in respect of any expense reimbursements or indemnities then due to the Lenders and the Issuing Banks;
(iv)fourth, to pay ratably applicable Obligations in respect of any fees then due to the Agents, the Lenders and the Issuing Banks;
(v)fifth, to pay ratably interest then due and payable in respect of the applicable Protective Advances;
(vi)sixth, to pay ratably the principal of the Protective Advances;
(vii)seventh, to pay ratably interest then due and payable in respect of the applicable Loans (other than the Protective Advances) and Reimbursement Obligations;
(viii)eighth, to pay or prepay ratably principal amounts on the applicable Loans (other than the Protective Advances) and Reimbursement Obligations and to provide cash collateral for applicable outstanding Letter of Credit Undrawn Amounts in the manner described in Section 8.2, ratably to the aggregate principal amount of such Loans, Reimbursement Obligations and Letter of Credit Undrawn Amounts;
(ix)ninth, to pay ratably amounts due and owing in respect of applicable Cash Management Obligations with respect to which proceeds of Collateral have not been applied in accordance with clause (vi) above and to pay amounts owing in respect of Hedge Agreements, ratably to the obligations owing with respect to such Cash Management Obligations and such amounts owing in respect of such Hedge Agreement; and
(x)tenth, pay ratably all other applicable Obligations;
provided, however, that if sufficient funds are not available to fund all payments to be made in respect of any Obligation described in any of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (x) above, the available funds being applied with respect to any such Obligation in such clause (unless otherwise specified in such clause) shall be allocated to the payment of such Obligation within such clause ratably, based on the proportion of the applicable Agent’s and each Lender’s or Issuing Bank’s interest in the aggregate outstanding Obligations described in such clauses; provided, however, that payments that would otherwise be allocated to the Lenders shall be allocated first to repay Swing Line Loans until such Swing Line Loans are paid in full and then to repay the Revolving Loans. Notwithstanding anything to the contrary contained herein, (i) proceeds of Collateral of European Credit Parties shall first be applied to the repayment of European Obligations otherwise in accordance with the provisions of this subsection (h) prior to the repayment of any Canadian Obligations or US Obligations, subject to the European Limitations, (ii) proceeds of Collateral of US Credit Parties shall first be applied to the repayment of US Obligations otherwise in accordance with the provisions of this subsection (h) prior to the repayment of
any Canadian Obligations or European Obligations and (iii) proceeds of Collateral of Canadian Credit Parties shall first be applied to the repayment of Canadian Obligations otherwise in accordance with the provisions of this subsection (h) prior to the repayment of any US Obligations or European Obligations.
2.16Ratable Sharing. Other than as set forth in Section 2.21 hereof, subject to the Intercreditor Agreement, the Lenders hereby agree among themselves that, except as otherwise provided in the Collateral Documents with respect to amounts realized from the exercise of rights with respect to Liens on the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of setoff or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code or any other Debtor Relief Laws, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of: Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (other than payments or reductions received by way of an assignment or participation effected pursuant to Section 10.6) (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (i) notify the Administrative Agent and each other Lender of the receipt of such payment and (ii) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of the applicable Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest.
Each Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with respect to any and all monies owing by such Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.
Notwithstanding anything to the contrary contained herein, proceeds of Collateral of European Credit Parties shall be applied subject to the European Limitations.
2.17Making or Maintaining Loans.
(a)Determination of Interest Rate. A determination of the applicable Alternate Base Rate, Canadian Prime Rate, Adjusted EURIBOR Rate, EURIBOR Rate, Adjusted Daily Simple RFR, Daily Simple RFR, Adjusted Term SOFR Rate, Term SOFR Rate, CDOR Rate or other interest rate hereunder by the Administrative Agent shall be conclusive absent manifest error.
(b)[reserved].
(c)Illegality or Impracticability of Term Benchmark Loans. In the event that on any date any Lender shall have determined (which determination shall be presumptively correct absent manifest error but shall be made only after consultation with the Parent Borrower and the Administrative Agent) that the making, maintaining or continuation of its Term Benchmark Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline, order, Governmental Authorization or any
other requirement of Law (or would conflict with any such treaty, governmental rule, regulation, guideline, order, Governmental Authorization or requirement of Law not having the force of law even though the failure to comply therewith would not be unlawful), in each case, first made after the date hereof or otherwise when compliance becomes required after the date hereof, or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the applicable interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by facsimile or by telephone confirmed in writing) to such Borrower and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each other Lender). Thereafter (1) the obligation of the Affected Lender to make Loans as, to convert Loans to, or continue Loans as, Term Benchmark Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, provided that such Affected Lender shall promptly withdraw such notice when such circumstances cease to exist, (2) to the extent such determination by the Affected Lender relates to a Term Benchmark Loan then being requested by such Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) (w) in the case of a Term Benchmark Loan to a US Borrower or Canadian Borrower denominated in Dollars, an ABR Loan, (x) in the case of a Term Benchmark Loan to a European Borrower denominated in Dollars, an Alternate Rate Borrowing, (y) in the case of a Term Benchmark Loan denominated in Canadian Dollars, a Canadian Prime Rate Loan and (z) in the case of a Term Benchmark Loan denominated in any other Available Currency, a Loan bearing interest at the Central Bank Rate for the applicable currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable currency cannot be determined, any outstanding affected Term Benchmark Loans shall, at the Parent Borrower’s election prior to such day: (I) bear interest at the Alternate Rate, (II) be prepaid by the Borrowers on such day or (III) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time, (3) the Affected Lender’s obligation to maintain its outstanding Term Benchmark Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into (w) in the case of a Term Benchmark Loan to a US Borrower or Canadian Borrower denominated in Dollars, an ABR Loan, (x) in the case of a Term Benchmark Loan to a European Borrower denominated in Dollars, an Alternate Rate Borrowing, (y) in the case of Term Benchmark Loans denominated in Canadian Dollars, Canadian Prime Rate Loans and (z) in the case of Term Benchmark Loans denominated in any other Available Currency, Loans bearing interest at the Central Bank Rate for the applicable currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable currency cannot be determined, any outstanding Affected Loans shall, at the Parent Borrower’s election prior to such day: (I) bear interest at the Alternate Rate, (II) be prepaid by the Borrowers on such day or
(III) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time, in each case on the date of such termination. Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Term Benchmark Loan then being requested by a Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, such Borrower shall have the option, subject to the provisions of Section (d) and Section 2.25, to rescind such
Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice (by facsimile or by telephone confirmed in writing) to the Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission the Administrative Agent shall promptly transmit to each other Lender). Except as provided in the immediately preceding sentence, nothing in this Section 2.17(c) shall affect the obligation of any Lender other than an Affected Lender to make, maintain or continue Loans as, or to convert Loans to, Term Benchmark Loans in accordance with the terms hereof. Upon any such conversion or prepayment pursuant to this Section 2.17(c), the Borrowers will also pay accrued interest on the amount so converted or prepaid.
(d)Compensation for Breakage or Non-Commencement of Interest Periods.
(xxxvi)With respect to Loans that are not RFR Loans, the Parent Borrower shall compensate each applicable Lender, within 30 days of a written request by such Lender (which request shall set forth in reasonable detail the basis for requesting such amounts, and which shall be presumptively correct absent manifest error), for all reasonable losses, expenses and liabilities (including any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Term Benchmark Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits) which such Lender actually sustains:
(i) if for any reason (other than a default by such Lender or such Lender becoming an Affected Lender) a borrowing of any Term Benchmark Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any Term Benchmark Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Term Benchmark Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; (iii) if any prepayment of any of its Term Benchmark Loans is not made on any date specified in a notice of prepayment given by such Borrower; or (iv) as a result of the CAM Exchange.
(xxxvii)With respect to RFR Loans, in the event of (i) the payment of any principal of any RFR Loan other than on the Interest Payment Date applicable thereto (including as a result of an Event of Default or an optional or mandatory prepayment of Loans), (ii) the failure to borrow or prepay any RFR Loan on the date specified in any notice delivered pursuant hereto, (iii) the assignment of any RFR Loan other than on the Interest Payment Date applicable thereto as a result of a request by the Borrowers pursuant to Section 2.22, (iv) the failure by the Borrowers to make any payment of any Loan or drawing under any Letter of Credit (or interest due thereof) denominated in an Alternative Currency on its scheduled due date or any payment thereof in a different currency or (v) as a result of the CAM Exchange, then, in any such event, the Borrowers shall compensate each Lender for the loss, cost and expense attributable to such event. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the applicable Borrower(s) and shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within thirty (30) days after receipt thereof.
(e)Booking of Loans. (1) (A) any Lender may make, carry or transfer Loans or Letters of Credit for a French Borrower at, to, or for the account of any of its branch offices so long as such Lender would continue to qualify as a French Qualifying Lender and a French Tax Qualifying Lender and (B) any Lender may make, carry or transfer Loans or Letters of Credit for
an Italian Borrower at, to, or for the account of any of its branch offices so long as such Lender would continue to qualify as a Italian Tax Qualifying Lender and an Italian Tax Qualifying Lender.
(xxxviii)Each Lender (which term, for the avoidance of doubt, shall include each Swing Line Lender and each Issuing Bank for purposes of this clause (i)) may from time to time, consistent with the internal policies of such Lender and its Affiliates and any applicable legal or regulatory restrictions, (a) make, carry or transfer Loans or Letters of Credit to any Borrower (other than a French Borrower or an Italian Borrower) at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender and
(b) carry or transfer any interests or participation interests allocated to such Lender pursuant to Section 8.5 (other than with respect to a French Borrower or an Italian Borrower) for the account of any of its branch offices or the office of an Affiliate of such Lender.
2.18Increased Costs; Capital Adequacy.
(a)Compensation for Increased Costs and Taxes. In the event that any Lender (which term, for the avoidance of doubt, shall include each Swing Line Lender and each Issuing Bank for purposes of this Section 2.18(a)) shall reasonably determine (which determination shall be presumptively correct absent manifest error) that any law, treaty or governmental rule, regulation, order or Governmental Authorization, or any change after the Closing Date therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation, order or Governmental Authorization), or any determination of a court or Governmental Authority, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other governmental or quasi-governmental authority (whether or not having the force of law): (i) subjects such Lender (or its applicable lending office) to any Tax (other than any Excluded Tax or any Non-Excluded Taxes or Other Taxes indemnified under Section 2.19) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance, liquidity requirement or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Term Benchmark Loans that are reflected in the applicable Term Benchmark); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then, in any such case, the applicable Borrower shall within 30 days after receipt of the statement referred to in the next sentence, pay to such Lender such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its reasonable discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to the applicable Borrower (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.18(a), which statement shall be presumptively correct absent manifest
error. Notwithstanding the foregoing, (i) no such Lender shall be entitled to additional amounts pursuant to this Section 2.18(a), unless it is the general policy of such Lender to claim such amounts from similarly situated borrowers and (ii) proceeds of Collateral of European Credit Parties shall be applied in accordance with the European Limitations.
(b)Capital Adequacy Adjustment. In the event that any Lender (which term shall include any Issuing Bank for purposes of this Section 2.18(b)) shall have reasonably determined that the adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy or liquidity, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling company could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling company with regard to capital adequacy and liquidity), then from time to time, within 30 days after receipt by the applicable Borrower from such Lender of the statement referred to in the next sentence, such Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling company on an after-tax basis for such reduction. Such Lender shall deliver to the applicable Borrower (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.18(b), which statement shall be presumptively correct absent manifest error. Notwithstanding the foregoing, (i) no such Lender shall be entitled to additional amounts pursuant to this Section 2.18(b), unless it is the general policy of such Lender to claim such amounts from similarly situated borrowers and (ii) each European Credit Party’s obligations under this Section 2.18(b) shall be subject to the European Limitations.
(c)For purposes of this Section 2.18, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, regulations, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall, in each case, be deemed to have gone into effect after the Closing Date, regardless of the date enacted, adopted or issued.
2.19Taxes; Withholding, Etc.
(a)Payments to Be Free and Clear. All sums payable by any Credit Party hereunder or under any other Credit Document to any Lender or Agent shall (except to the extent required by law or as otherwise provided herein) be paid free and clear of, and without any deduction or withholding on account of, any Taxes.
(b)Withholding of Taxes. If any Credit Party or any other applicable withholding agent is required by law to make any deduction or withholding on account of any Taxes from any sum paid or payable by any Credit Party to any Lender or Agent under any of the Credit
Documents: (i) the applicable Credit Party shall notify the Administrative Agent of any such requirement or any change in any such requirement as soon as such Credit Party becomes aware of it; (ii) the applicable Credit Party or withholding agent shall make such deduction or withholding and pay to the relevant Governmental Authority any such Taxes before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on any Credit Party) for its own account or (if that liability is imposed on the Lender or Agent) on behalf of and in the name of the Lender or Agent (as applicable); (iii) if such Taxes are Non-Excluded Taxes or Other Taxes, the sum payable to such Lender or Agent (as applicable) shall be increased by such Credit Party to the extent necessary to ensure that, after the making of any required deduction or withholding (including any deductions or withholdings attributable to any payments required to be made under this Section 2.19), the Lender or the Agent (as applicable), receives on the due date a net sum equal to what it would have received had no such deduction or withholding been required or made; and (iv) within thirty (30) days after paying any sum from which it is required by Law to make any deduction or withholding, and within thirty (30) days after the due date of payment of any Tax which it is required by clause (ii) above to pay, the Credit Party making such payments shall deliver to the Administrative Agent evidence reasonably satisfactory to the other affected parties of such deduction or withholding and of the remittance thereof to the relevant Governmental Authority.
(c)A payment to a Lender (or the Administrative Agent for the account of a Lender) shall not be increased under Section 2.19(b) above by reason of any Non-Excluded Taxes or Other Taxes on account of Tax imposed by France, if on the date on which the payment falls due:
(xxxix)the payment could have been made to the Administrative Agent or the relevant Lender (or to the Administrative Agent for the account of such Lender) without a Tax Deduction if the Lender had been a French Tax Qualifying Lender, but on that date that Lender is not or has ceased to be a French Tax 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 published concession of any relevant taxing authority; provided that the exclusion for changes after the date a Lender became a Lender under this paragraph shall not apply in respect of any Tax Deduction on account of Tax imposed by France on a payment made to a Lender (or to an Agent for the account of a Lender) if such Tax Deduction is imposed solely because this payment is made to an account opened in the name of or for the benefit of that Lender or that Agent in a financial institution situated in a Non-Cooperative Jurisdiction; or
(xl)the relevant Lender is a French Treaty Lender and the Credit Party or any other Credit Party making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Section 2.19(d).
(d)A French Treaty Lender and the Credit Party which makes a payment to which that French Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for the Credit Party to obtain authorization to make that payment without a Tax Deduction.
(e)[Reserved].
(f)[Reserved].
(g)A payment to a Lender (or the Administrative Agent for the account of a Lender) shall not be increased under Section 2.19(b) above by reason of any Non-Excluded Taxes or Other Taxes on account of Tax imposed by Sweden, if on the date on which the payment falls due:
(xli)the payment could have been made to the Administrative Agent or the relevant Lender (or to the Administrative Agent for the account of such Lender) without a Tax Deduction if the Lender had been a Swedish Tax Qualifying Lender, but on that date that Lender is not or has ceased to be a Swedish Tax 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 published concession of any relevant taxing authority; or
(xlii)the relevant Lender is a Swedish Treaty Lender and the Credit Party or any other Credit Party making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Section 2.19(h).
(h)A Swedish Treaty Lender and the Credit Party which makes a payment to which that Swedish Treaty Lender is entitled shall co-operate in completing any procedural formalities necessary for the Credit Party to obtain authorization to make that payment without a Tax Deduction.
(i)A payment to a Lender (or the Administrative Agent for the account of a Lender) shall not be increased under Section 2.19(b) above by reason of any Non-Excluded Taxes or Other Taxes on account of Tax imposed by Spain, if on the date on which the payment falls due:
(xliii)the payment could have been made to the Administrative Agent or the relevant Lender (or to the Administrative Agent for the account of such Lender) without a Tax Deduction if the Lender had been a Spanish Tax Qualifying Lender, but on that date that Lender is not or has ceased to be a Spanish Tax 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 published concession of any relevant taxing authority; or
(xliv)the relevant Lender is a Spanish Tax Qualifying Lender, other than a Spanish Lender, and the Credit Party or any other Credit Party making the payment is able to demonstrate that the payment could have been made to the Lender without the Tax Deduction had that Lender complied with its obligations under Section 2.19(k)(10).
(j)[Reserved].
(k)Status of Lender. Each Lender shall, at such times as are reasonably requested by a Borrower or an Applicable Agent, provide such Borrower and such Applicable Agent with any documentation prescribed by laws or reasonably requested by such Borrower or such Applicable Agent certifying as to any entitlement of such Lender to an exemption from, or reduction in, withholding Tax with respect to any payments to be made to such Lender under any Credit Document. In addition, any Lender, if reasonably requested by the Borrower or an Applicable Agent, shall deliver such other documentation prescribed by laws or reasonably requested by the Borrower or an Applicable Agent as will enable the Borrower or an Applicable Agent to determine whether or not such Lender is subject to backup withholding or information
reporting requirements. Each such Lender shall, whenever a lapse in time or change in circumstances renders such documentation (including any specific documentation required below in this Section 2.19(k)) obsolete, expired or inaccurate in any material respect, deliver promptly to the applicable Borrower and the Applicable Agent updated or other appropriate documentation (including any new documentation reasonably requested by such Borrower or such Applicable Agent) or promptly notify such Borrower and such Applicable Agent of its legal inability to do so.
Without limiting the generality of the foregoing, in the event that the Borrower is a US Borrower:
(1)Each US Lender shall deliver to the Parent Borrower and the Administrative Agent on or before the date on which it becomes a party to this Agreement properly completed and duly signed original copies of Internal Revenue Service Form W-9 (in such number of copies as shall be requested by the recipient) certifying that such Lender is exempt from U.S. federal backup withholding.
(2)Each Non-US Lender shall deliver to the Parent Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or before the date on which it becomes a party to this Agreement (and from time to time thereafter upon the request of the Parent Borrower or the Administrative Agent) whichever of the following is applicable:
(A)properly completed and duly signed original copies of Internal Revenue Service Form W-8BEN or W-8BEN-E (or any successor forms), as applicable, claiming eligibility for the benefits of an income tax treaty to which the United States is a party, and such other documentation as required under the Internal Revenue Code,
(B)properly completed and duly signed original copies of Internal Revenue Service Form W-8ECI (or any successor forms),
(C)in the case of a Non-US Lender claiming the benefits of the exemption for portfolio interest under Section 871(h) or Section 881(c) of the Internal Revenue Code, (A) properly completed and duly signed certificates substantially in the form of Exhibit D (any such certificate, a “United States Tax Compliance Certificate”) and (B) properly completed and duly signed original copies of Internal Revenue Service Form W- 8BEN or W-8BEN-E (or any successor forms), as applicable,
(D)to the extent a Non-US Lender is not the beneficial owner (for example, where the Non-US Lender is a partnership or a participating Lender), Internal Revenue Service Form W-8IMY (or any successor forms) of the Non-US Lender, accompanied by a Form W-8ECI, W-8BEN, W-8BEN-E, United States Tax Compliance Certificate, Form W-9, Form W-8IMY or any other required information (or any successor forms) from each beneficial owner that would be required under this Section 2.19(k) if such beneficial owner were a Lender, as applicable (provided that, if one or more beneficial owners are claiming the portfolio interest exemption, the United States Tax Compliance Certificate may be provided by such Non-US Lender on behalf of such beneficial owner), or
(E)properly completed and duly signed original copies of any other form prescribed by applicable U.S. federal income tax laws (including the Treasury Regulations) as a basis for claiming a complete exemption from, or a reduction in, United States federal withholding tax on any payments to such Lender under the Credit Documents.
(3)If a payment made to any Applicable Agent or a Lender under any Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Applicable Agent or such Lender were to fail to comply with the applicable reporting requirements of those Sections (including those contained in Sections 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Applicable Agent or such Lender shall deliver to Parent Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Parent Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by Parent Borrower or the Administrative Agent as may be necessary for Parent Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine whether such Applicable Agent or such Lender has or has not complied with such Applicable Agent’s or such Lender’s obligations under FATCA and, if necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this Section 2.19(k)(3), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
(4)Additional United Kingdom Withholding Tax Matters.
(F)Subject to Section 2.19(k)(4)(C) below, each Lender that has made Loans to a UK Borrower and each UK Borrower which makes a payment to such Lender shall cooperate in completing as soon as reasonably practicable any procedural formalities necessary for such UK Borrower to obtain authorization to make such payment without withholding or deduction for Taxes imposed under the laws of the United Kingdom.
(G)
(l)A UK Treaty Lender which becomes a party to this Agreement on the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and its jurisdiction of tax residence opposite its name at Appendix A (Revolving Commitments); and
(m)a UK Treaty Lender which becomes a party to this Agreement after the day on which this Agreement is entered into that holds a passport under the HMRC DT Treaty Passport scheme, and which wishes that scheme to apply to this Agreement, shall confirm its scheme reference number and jurisdiction of tax residence in the documentation which it executes on becoming a party to this Agreement as a Lender.
(H)Upon satisfying Section 2.19(k)(4)(B)(a) or (b) above, such Lender shall have satisfied its obligation under Section 2.19(k)(4)(A) above and, in relation to the UK withholding tax that is mentioned in Section 2.19(k)(4)(A), its corresponding obligation under the first paragraph of this Section 2.19(k).
(I)If a Lender has confirmed its scheme reference number and its jurisdiction of tax residence in accordance with Section 2.19(k)(4)(B) above and:
(n)a UK Borrower making a payment to such Lender has not made a Borrower DTTP Filing in respect of such Lender; or
(o)a UK Borrower making a payment to such Lender has made a Borrower DTTP Filing in respect of such Lender but:
asuch Borrower DTTP Filing has been rejected by HM Revenue & Customs; or
bHM Revenue & Customs has not given such UK Borrower authority to make payments to such Lender without a deduction for Taxes within 60 days of the date of such Borrower DTTP Filing; or
cHM Revenue & Customs has given such UK Borrower authority to make payments to such Lender without a deduction for Taxes but such authority has subsequently been revoked or expired,
and in each case, such UK Borrower has notified that Lender in writing of either
(a) or (b) above, then such Lender and such UK Borrower shall co-operate in completing any additional procedural formalities necessary for such UK Borrower to obtain authorization to make that payment without withholding or deduction for Taxes imposed under the laws of the United Kingdom.
(J)If a Lender has not confirmed its scheme reference number and jurisdiction of tax residence in accordance with Section 2.19(k)(4)(B) above, no UK Borrower shall make a Borrower DTTP Filing or file any other form relating to the HMRC DT Treaty Passport scheme in respect of that Lender’s Commitment(s) or its participation in any Loan unless the Lender otherwise agrees.
(5)Each UK Borrower shall, promptly on making a Borrower DTTP Filing, deliver a copy of such Borrower DTTP Filing to the Administrative Agent for delivery to the relevant Lender.
(6)A UK Non-Bank Lender shall promptly notify the relevant UK Borrower and the relevant Applicable Agent if there is any change in the position from that set out in the UK Tax Confirmation.
(7)Each Lender that makes any Loan to a French Borrower shall, on or before the date it becomes a party hereto, inform the French Borrower whether it is a French Tax Qualifying Lender by completing the French Lender Tax Certificate (or a substantially similar certificate). Any such Lender shall also promptly notify the French Borrower if it subsequently ceases to be a French Tax Qualifying Lender or subsequently becomes a French Tax Qualifying Lender or if it
sells an interest in the Loan made to a French Borrower to a participant who is not French Tax Qualifying Lender.
(8)Each Lender that makes any Loan to an Italian Borrower shall, on or before the date it becomes a party hereto, inform the Italian Borrower whether it is an Italian Tax Qualifying Lender that falls under paragraphs (d)-(g) or (h) of the definition of Italian Tax Qualifying Lender by completing the Italian Lender Tax Certificate (in particular, any Lender that falls under paragraphs (d)-(g) should complete Part 1 of the Italian Lender Tax Certificate, the “Self- Declaration”, and any Lender that falls under paragraph (h) should file Part B of the Italian Lender Tax Certificate, the “Affidavit – Form B”). Any such Lender shall also promptly notify the Italian Borrower if it subsequently ceases to be an Italian Tax Qualifying Lender or subsequently becomes an Italian Tax Qualifying Lender under paragraphs (d)-(g) or (h) of the definition of Italian Tax Qualifying Lender or if it sells an interest in the Loan made to an Italian Borrower to a participant who is not Italian Tax Qualifying Lender.
(9)Each Lender that makes any Loan to a Swedish Borrower shall, on or before the date it becomes a party hereto, inform the Swedish Borrower whether it is a Swedish Tax Qualifying Lender by completing the Swedish Lender Tax Certificate (or a substantially similar certificate). Any such Lender shall also promptly notify the Swedish Borrower if it subsequently ceases to be a Swedish Tax Qualifying Lender or subsequently becomes a Swedish Tax Qualifying Lender or if it sells an interest in the Loan made to a Swedish Borrower to a participant who is not Swedish Tax Qualifying Lender.
(10)Each Spanish Tax Qualifying Lender, other than, a Spanish Lender as soon as reasonably practicable after the date on which it becomes a Party, but before any payment of interest is due or made, whichever comes first, deliver to the Spanish Borrower through the Administrative Agent a certificate of tax residence (or the specific form required under the relevant Spanish Treaty) duly issued by the competent tax authorities of its country of tax residence evidencing such Lender as resident for tax purposes in that country and, if the Lender is a Spanish Treaty Lender, accrediting such Spanish Treaty Lender as tax resident in the relevant jurisdiction within the meaning of the relevant Spanish Treaty. Upon timely written request from the Credit Party, each Spanish Tax Qualifying Lender, other than a Spanish Lender, shall be required to deliver a new certificate of tax residence upon expiry of the existing certificate in accordance with the applicable Spanish legislation.
(11)Each Lender that makes any Loan to a Belgian Borrower and which is or becomes a tax resident of a Belgian Non-Cooperative Jurisdiction or, as the case may be, acts or will act through a facility office, with which the relevant Loan under a Credit Document is effectively connected, located in a Belgian Non-Cooperative Jurisdiction, shall provide information reasonably demonstrating that it cannot be considered as an artificial construction within the meaning of article 198, §1, 10° of the Belgian Income Tax Code 1992, following the receipt of a request from the Belgian Borrower.
(12)[Reserved].
(13)On or before the Closing Date (and on or before the date any successor or replacement Administrative Agent becomes the Administrative Agent hereunder), to the extent copies thereof have not previously been so delivered, the Administrative Agent shall deliver to the US Borrowers, to the extent it is legally able to do so, two duly executed copies of either (i) Internal Revenue Service Form W-9 or (ii) Internal Revenue Service Form W-8IMY certifying
that it is a “U.S. branch” of a foreign bank and evidencing its agreement with the US Borrowers to be treated as a U.S. person with respect to payments made to it by the US Borrowers.
Notwithstanding any other provision of this clause (k), a Lender shall not be required to deliver any form that such Lender is not legally eligible to deliver.
(p)In addition to the payments by a Credit Party required by Section 2.19(b), the applicable Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(q)The Credit Parties shall, jointly and severally (except as provided in Section 2.19(p) below), indemnify a Lender or Agent (each a “Tax Indemnitee”), within 10 days after written demand therefor, for the full amount of any Non-Excluded Taxes (other than those taxes which may not give rise to a gross-up pursuant to Section 2.19(r)) paid or payable by such Tax Indemnitee on or attributable to any payment under or with respect to any Credit Document, and any Other Taxes payable by such Tax Indemnitee (including Non-Excluded Taxes or Other Taxes imposed on or attributable to amounts payable under this Section 2.19), whether or not such Taxes were correctly or legally imposed or asserted by the Governmental Authority. A certificate as to the amount of such payment or liability prepared in good faith and delivered by the Tax Indemnitee or by the Agent on its own behalf or on behalf of another Tax Indemnitee, shall be conclusive absent manifest error.
(r)If and to the extent that a Tax Indemnitee, in its sole discretion (exercised in good faith), determines that it has received a refund of any Non-Excluded Taxes or Other Taxes in respect of which it has been indemnified pursuant to this Section 2.19 (including by the payment of additional amounts pursuant to this Section), then such Tax Indemnitee shall pay to the relevant Credit Party the amount of such refund, net of all out-of-pocket expenses of the Tax Indemnitee (including any Taxes imposed with respect to such refund), and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided that the Credit Party, upon the request of the Tax Indemnitee, agrees to repay the amount paid over to the Tax Indemnitee (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Tax Indemnitee if the Tax Indemnitee is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require a Tax Indemnitee to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Party or any other Person.
(s)In the event that a Credit Party makes an indemnification payment to a Tax Indemnitee with respect to Non-Excluded Taxes or Other Taxes pursuant to subsection (m) of this Section 2.19 or a Credit Party is required to repay to a Tax Indemnitee an amount in respect of a refund of any Non-Excluded Taxes or Other Taxes previously paid over to such Credit Party pursuant to subsection (n) of this Section 2.19, such Tax Indemnitee shall reasonably cooperate with all reasonable requests of such Credit Party, at the sole expense of such Credit Party, if (i) in the reasonable judgment of the Tax Indemnitee such cooperation shall not subject such Tax Indemnitee, as the case may be, to any unreimbursed third party cost or expense or otherwise be materially disadvantageous to such Tax Indemnitee and (ii) based on advice of such Credit Party’s independent accountants or external legal counsel, there is a reasonable basis for such Credit Party to contest with the applicable Governmental Authority the imposition of such Non- Excluded Taxes or Other Taxes or the repayment of such refund. Any resulting refund shall be governed by Section 2.19(n). This subsection shall not be construed to require a Tax Indemnitee to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Credit Party or any other Person.
(t)Notwithstanding anything to the contrary in this Section 2.19, the obligations of each European Credit Party hereunder with respect to any Non-Excluded Taxes and Other Taxes shall be subject to the European Limitations, (w) each French Borrower shall only be liable for such additional amounts to the extent that they relate to such French Borrower’s Obligations; (x) each German Borrower shall only be liable for such additional amounts to the extent that they relate to such German Borrower’s Obligations and (y) each Swiss Borrower shall only be liable for such additional amounts to the extent that they relate to such Swiss Borrower’s Obligations.
(u)For the avoidance of doubt, the term “Lender” shall, for purposes of this Section 2.19, include each Swing Line Lender and each Issuing Bank.
(v)No Swiss Borrower shall be required to make an increased payment to a specific Lender in respect of Swiss Withholding Tax or interest payable by such Swiss Borrower under Sections 2.19(b) or 2.19(m) or to make an increased interest payment in accordance with Section 2.7(h) in connection with the deduction of Swiss Withholding Tax if on the date on which the payment falls due:
(xlv)that specific Lender has breached its obligations pursuant to Section 10.6(e)(4) or has acquired any rights pursuant to Section 10.6 against a Swiss Borrower from a Lender that has breached its obligations pursuant to Section 10.6(e)(4) and the Swiss Withholding Tax would not have been imposed but for such breach; or
(xlvi)in the case of that specific Lender that was a Swiss Qualifying Bank when it became a lender, the interest payment could have been made to such Lender without deduction of Swiss Withholding Tax if it had remained a Swiss Qualifying Bank, but on that date such Lender has ceased to be a Swiss Qualifying Bank as a result of any reason attributable to such Lender (such as the revocation of a license) but not 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.
Notwithstanding anything to the contrary set forth herein, this Section 2.19(r) shall not apply to
(A) any Tranche A Lender or a Tranche B Lender becoming a Tranche C Lender pursuant to Section 8.5 or (B) any Swiss Withholding Tax that would not apply to any Lender but for the consummation of the CAM Exchange under Section 8.5.
(w)Each original Lender who has made a Loan to a Swiss Borrower confirms on the date of this Agreement that it is a Swiss Qualifying Bank and any other Person that shall become a Lender hereto with respect to such Loan pursuant to an Assignment or Participation pursuant to Section 10.6 (but excluding, for the avoidance of doubt, pursuant to the CAM Exchange under Section 8.5) shall be deemed to have confirmed, as of the date of such Assignment or Participation, that it (i) is a Swiss Qualifying Bank or (ii) is a Swiss Non-Qualifying Bank and counts as a single creditor for the purposes of the Swiss Non-Bank Rules.
(x)[Reserved].
(y)All amounts set out or expressed hereunder or under the other Credit Documents to be payable to any Secured Party by another party to the agreement hereunder or to the other Credit Documents (a “Party”) which (in whole or in part) constitute the consideration for a supply or supplies for value added tax (“VAT”) purposes shall be deemed to be exclusive of any VAT which is chargeable on such supply or supplies, and accordingly, subject to paragraph (g)
below, if VAT is or becomes chargeable on any supply made by any Secured Party to any Party under the agreement hereunder or under the Other Credit Documents, that Party shall pay to the Secured Party (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of such VAT (and such Secured Party shall promptly provide an appropriate VAT invoice to such Party.
(z)If VAT is or becomes chargeable on any supply made by any Secured Party (the “Supplier”) to any other Secured Party (the “Recipient”) under the agreement hereunder or under the other Credit Documents, and any Party other than the Recipient (the “Subject Party”) is required by the terms of the agreement hereunder and the other Credit Documents to pay an amount equal to the consideration for such supply to the Supplier (rather than being required to reimburse the Recipient in respect of that consideration), such Party shall also pay to the Supplier (in addition to and at the same time as paying such amount) an amount equal to the amount of such VAT. The Recipient will promptly pay to the Subject Party an amount equal to any credit or repayment obtained by the Recipient from the relevant tax authority which the Recipient reasonably determines is in respect of such VAT.
(aa)Where the agreement hereunder and any other Credit Document requires any Party to reimburse or indemnify a Secured Party for any cost or expense, that Party shall reimburse or indemnify (as the case may be) such Secured Party for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that such Secured Party reasonably determines that it is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
2.20Obligation to Mitigate. Each Lender (which term, for the avoidance of doubt, shall include each Swing Line Lender and each Issuing Bank for purposes of this Section 2.20) agrees that, as promptly as practicable after (a) the officer of such Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive additional amounts under Section 2.17, 2.18 or 2.19, or (b) any amount payable to such Lender by, respectively, a French Borrower or a Belgian Borrower under this Agreement is not, or will not be (when the relevant corporate income tax is calculated) treated as a deductible charge or expense for, respectively, French or Belgian tax purposes for that Borrower, and with respect to the Belgian Borrower despite the fact that the amounts payable have been duly reported by the Belgian Borrower to the Belgian tax authorities and that the Belgian Borrower has reasonably tried to establish that the amounts payable have been made in the framework of real and genuine business transactions and to entities other than artificial constructions in the meaning of Article 198, §1, 10° of the Belgian Income Tax Code 1992, by reason of (i) such Lender being incorporated, domiciled or established in, or acting through an office situated in, respectively, a Non-Cooperative Jurisdiction or a Belgian Non-Cooperative Jurisdiction or (ii) such amount being paid to an account opened in the name of or for the benefit of such Lender in a financial institution situated in respectively, a Non-Cooperative Jurisdiction or a Belgian Non- Cooperative Jurisdiction (each a “Non-Cooperative Jurisdiction Lender”), it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (x) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office or branch of such Lender or to assign its rights and obligations hereunder to another Affiliate, or (y) take such other reasonable measures, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender or a Non-Cooperative Jurisdiction Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.17, 2.18 or 2.19 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans or Letters of Credit through such other office or in accordance with such other
measures, as the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters of Credit or the interests of such Lender; provided such Lender will not be obligated to utilize such other office pursuant to this Section 2.20 or take such other measures unless the applicable Borrower agrees to pay all reasonable incremental expenses incurred by such Lender as a result of taking such measures as described above. A certificate as to the amount of any such expenses payable by the applicable Borrower pursuant to this Section 2.20 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to such Borrower (with a copy to the Administrative Agent) shall be presumptively correct absent manifest error.
2.21Defaulting Lenders. Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then the following provisions shall apply for so long as such Lender is a Defaulting Lender:
(a)fees shall cease to accrue on the unfunded portion of the Revolving Commitment of such Defaulting Lender pursuant to Section 2.10(a)(i);
(b)the Revolving Commitment and Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.5); provided that (i) such Defaulting Lender’s Revolving Commitment may not be increased or extended without its consent and (ii) the principal amount of, or interest or fees payable on, Loans or disbursements under Letters of Credit may not be reduced or excused or the scheduled date of payment may not be postponed as to such Defaulting Lender without such Defaulting Lender’s consent;
(c)if any Swing Line Loan is outstanding or Letter of Credit Usage exists at the time such Lender becomes a Defaulting Lender then:
(xlvii)all or any part of such Defaulting Lender’s Pro Rata Share of any participations in any Letter of Credit Obligations and in any outstanding Swing Line Loans shall be reallocated among the non-Defaulting Lenders (for the avoidance of doubt, by Tranche) in accordance with their respective Pro Rata Shares but only to the extent the sum of all non-Defaulting Lenders’ Revolving Credit Exposures plus such Defaulting Lender’s Pro Rata Share of any participations in any Letter of Credit Obligations and in any outstanding Swing Line Loans for such Tranche does not exceed the total of all non-Defaulting Lenders’ Revolving Commitments with respect to such Tranche and to the extent that any non-Defaulting Lender’s Revolving Credit Exposure with respect to the applicable Tranche plus its allocated Pro Rata Share of such Defaulting Lender’s participation in any Letter of Credit Obligations and outstanding Swing Line Loans does not exceed such non-Defaulting Lender’s Revolving Commitment with respect to the applicable Tranche;
(xlviii)if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Parent Borrower shall within one Business Day following notice by the Administrative Agent (x) first, prepay such unreallocated portion of the outstanding Swing Line Loans and (y) second, cash collateralize for the benefit of the applicable Issuing Bank only the Borrowers’ obligations corresponding to such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations (after giving effect to any partial reallocation pursuant to clause (i) above) in accordance with the procedures set forth in Section 2.13(a) for so long as such Letter of Credit Obligations are outstanding or (z) make other arrangements satisfactory to the Administrative Agent, and
to the Issuing Banks and the Swing Line Lenders, as the case may be, in their sole discretion, to protect them against the risk of non-payment by such Defaulting Lender; provided that (A) to the extent that cash collateral has previously been provided pursuant to this clause (ii) and, a result of a repayment of Revolving Loans or otherwise, further reallocation of amounts among the Lenders in accordance with clause (i) above may be made, then, solely to the extent of the amounts so reallocated, the cash collateral requirement pursuant to this clause (ii) will terminate and each applicable Issuing bank and Swing Line Lender will cause any cash collateral posted with respect to their respective Letter of Credit Obligations or Swing Line Loans, as the case may be, to be returned to the applicable Borrower subject to any terms relating to such cash collateral and (B) neither such reallocation nor any payment pursuant hereto will constitute a waiver or release of any claim any Borrower, the Administrative Agent, any Issuing Bank, any Swing Line Lender or any other Lender may have against such Defaulting Lender or cause such Defaulting Lender to be a Non-Defaulting Lender;
(xlix)if the Parent Borrower cash collateralizes any portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations pursuant to clause (ii) above, the Parent Borrower shall not be required to pay any fees to such Defaulting Lender pursuant to Section 2.10(a)(ii) with respect to such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations during the period such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations is cash collateralized;
(l)if a reallocation of the Letter of Credit Obligations among the non- Defaulting Lender’s is effected pursuant to clause (i) above, then the fees payable to the Lenders pursuant to Section 2.10(a)(i) and Section 2.10(a)(ii) shall be adjusted in accordance with such non-Defaulting Lenders’ Pro Rata Shares after giving effect to such reallocation; and
(li)if all or any portion of such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations is neither reallocated nor cash collateralized pursuant to clause (i) or (ii) above, then, without prejudice to any rights or remedies of any Borrower, any Issuing Bank or any other Lender hereunder, all letter of credit fees payable under Section 2.10(a)(ii) with respect to such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations shall be payable to the applicable Issuing Bank until and to the extent that such Defaulting Lender’s Pro Rata Share of the Letter of Credit Obligations is reallocated and/or cash collateralized; and
(d)notwithstanding anything to the contrary set forth herein, so long as such Lender is a Defaulting Lender, no Swing Line Lender under the applicable Tranche shall be required to fund any Swing Line Loan and no Issuing Bank under the applicable Tranche shall be required to issue, amend or increase any Letter of Credit, unless the related exposure and the Defaulting Lender’s then outstanding Pro Rata Share of the Letter of Credit Obligations will be 100% covered by the Revolving Commitments of the non-Defaulting Lenders and/or cash collateral will be provided by the Parent Borrower in accordance with Section 2.21(c), and participating interests in any newly made Swing Line Loan or any newly issued or increased Letter of Credit shall be allocated among non-Defaulting Lenders in a manner consistent with Section 2.21(c)(i) (and such Defaulting Lender shall not participate therein).
(e)In the event that the Administrative Agent, the Borrowers, each applicable Issuing Bank and each applicable Swing Line Lender each agrees that a Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Pro
Rata Shares of the Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Commitment and on such date such Lender shall purchase at par such of the Loans of the other Lenders (other than Swing Line Loans) as the Administrative Agent shall determine may be necessary in order for such Lender to hold such Loans in accordance with its Pro Rata Share.
2.22Removal or Replacement of a Lender. Anything contained herein to the contrary notwithstanding, in the event that: (a) (i) any Lender (an “Increased-Cost Lender”) shall give notice to the applicable Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section 2.17 (other than clause (d) thereof), 2.18 or 2.19 or is a Lender situated in a Non- Cooperative Jurisdiction, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect or such Lender shall not have withdrawn such notice, and (iii) such Lender shall fail to withdraw such notice within five Business Days after the applicable Borrower’s request for such withdrawal; or (b) (i) any Lender shall become and remain a Defaulting Lender and (ii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after the applicable Borrower’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of Required Lenders shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender, Non-Consenting Lender (each, a “Terminated Lender”), the applicable Borrower may, by giving written notice to the Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each, a “Replacement Lender”) in accordance with the provisions of Section 10.6 and each Replacement Lender (or failing which, the Borrowers) shall pay any fees payable thereunder in connection with such assignment; provided, (1) on the date of such assignment, the Replacement Lender shall pay to such Terminated Lender an amount equal to the sum of (A) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (B) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (C) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.10; (2) on the date of such assignment, the applicable Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.17(d), 2.18 or 2.19, or otherwise as if it were a prepayment; (3) to the extent an assignment to such Replacement Lender would require the consent of the Administrative Agent under Section 10.6, such Replacement Lender shall be reasonably acceptable to the Administrative Agent; and (4) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender; provided, the applicable Borrower may not make such election with respect to any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such election, such Borrower shall have caused each outstanding Letter of Credit issued thereby to be cancelled or shall provide cash collateral or backstop letters of credit acceptable to such Issuing Bank in an amount equal to 103% of the applicable Letter of Credit Obligations. Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving Commitments, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided any rights of such Terminated Lender to indemnification and to expense reimbursement hereunder shall survive as to such Terminated Lender. Each Lender agrees that, if it becomes a Terminated Lender and its rights and claims are assigned hereunder to a Replacement Lender pursuant to this Section 2.22, it shall execute and deliver to the Administrative Agent an Assignment Agreement to evidence such assignment, together with any Revolving Loan Note (if such Loans are evidenced by a Revolving Loan Note) evidencing the Loans
subject to such Assignment Agreement; provided, however, that the failure of any Terminated Lender to execute an Assignment Agreement shall not render such assignment invalid.
2.23Extensions. At any time on or prior to the Revolving Commitment Termination Date, the Parent Borrower may request an extension of the Revolving Commitments (a “Proposed Extension”) by notice to the Administrative Agent, the Lenders, the Issuing Banks and the Swing Line Lenders. Each such notice shall specify the proposed extended revolving commitment termination date (the “Extended Termination Date”) and any other terms or conditions with respect to the Proposed Extension. Neither the Administrative Agent nor any Lender, Issuing Bank or Swing Line Lender shall be obligated in any capacity to provide any such extension of its Revolving Commitments pursuant to any Proposed Extension or enter into any negotiations with respect to any Proposed Extension. Each Lender, Issuing Bank and Swing Line Lender, as applicable, choosing to extend its Revolving Commitment pursuant to a Proposed Extension (each, an “Extending Lender”) and the applicable Borrowers may prepare appropriate documentation necessary to reflect the terms and conditions of the Proposed Extension; provided that (i) no amendments or modifications to any Credit Documents will be permitted prior to the Revolving Commitment Termination Date unless the Administrative Agent, in its sole discretion, consents to any such amendments or modifications (subject in each case to the requirements of Section 10.5); (ii) amendments or modifications to any Credit Document shall be permitted with the consent of the Administrative Agent and the Extending Lenders (but solely to the extent such amendments and modifications apply only following the Revolving Commitment Termination Date); and (iii) unless the Administrative Agent has agreed in its sole discretion to act as the Administrative Agent for the Extending Lenders following the Revolving Commitment Termination Date, a successor Administrative Agent shall have been appointed by the Extending Lenders to act as administrative agent commencing on the Revolving Commitment Termination Date.
2.24Protective Advances.
(a)Subject to the limitations set forth below, the Administrative Agent is authorized (but shall have no obligation to) by the Borrowers and the Lenders, from time to time following the occurrence and during the continuance of a Default or Event of Default, in the Administrative Agent’s Permitted Discretion, to make (or authorize the Administrative Agent to make) (i) Loans to the Parent Borrower in Dollars on behalf of the Tranche A Lenders (each such Loan, a “Tranche A Protective Advance”), which the Administrative Agent, in its Permitted Discretion, deems necessary or desirable (i) to preserve or protect the Collateral, or any portion thereof, (ii) to enhance the likelihood of, or maximize the amount of, repayment of the Loans and other Obligations or (iii) to pay any other amount chargeable to or required to be paid by any of the Borrowers to the Agents and the Lenders pursuant to the terms of this Agreement, including payments of reimbursable expenses (including costs, fees, and expenses as described in Section 10.2) and other sums payable under the Credit Documents (any of such Loans are herein referred to as “Protective Advances”); provided that (x) no Protective Advance may remain outstanding for more than 30 days; (y) the aggregate amount of Protective Advances outstanding at any time shall not exceed 10% of the Commitments outstanding as of such date; and (z) no Protective Advance shall be made that would result in the Revolving Credit Exposure of any Tranche A Lender exceeding such Lender’s Tranche A Revolving Commitment; provided further that no Protective Advance shall result in a Default due to the Borrowers’ failure to comply with Section
2.1 for so long as such Protective Advance remains outstanding in accordance with the terms of this paragraph, but solely with respect to the amount of such Protective Advance. Protective Advances may be made even if the conditions precedent set forth in Section 3.2 have not been satisfied. The Protective Advances shall be secured by the Liens in favor of each Applicable Collateral Agent (for the benefit of the Agents, the Lenders and the Issuing Banks) in and to the Collateral and shall constitute Obligations hereunder. All Protective Advances denominated in
Dollars to the US Borrowers shall be ABR Borrowings. The Administrative Agent’s authorization to make Protective Advances may be revoked at any time by the Required Lenders. Any such revocation must be in writing and shall become effective prospectively upon the Administrative Agent’s receipt thereof. At any time that there is sufficient Tranche A Available Credit in respect of the Parent Borrower, as the case may be, and the conditions precedent set forth in Section 3.2 have been satisfied, the Administrative Agent may request the Lenders to make a Revolving Loan, in the currency in which the applicable Protective Advance was denominated, to repay a Protective Advance. At any other time the Administrative Agent may require the Lenders to fund, in the currency in which the applicable Protective Advance was denominated, their risk participations described in Section 2.24(a). It is agreed that the Administrative Agent shall endeavor, but without any obligation, to notify the Parent Borrower promptly after the making of any Protective Advance.
(b)Upon the making of a Protective Advance by the Administrative Agent in accordance with the terms hereof, each Tranche A Lender shall be deemed, without further action by any party hereto, to have unconditionally and irrevocably purchased from the Administrative Agent, without recourse or warranty, an undivided interest and participation in such Tranche A Protective Advance in proportion to its Pro Rata Share. From and after the date, if any, on which any Lender is required to fund its participation in any Protective Advance purchased hereunder, the Administrative Agent shall promptly distribute to such Lender such Lender’s Pro Rata Share of all payments of principal and interest and all proceeds of Collateral received by the Administrative Agent in respect of such Protective Advance.
2.25Alternate Rate of Interest.
(a)Subject to clauses (b), (c), (d), (e), and (f) of this Section 2.25, if:
(lii)the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) (A) prior to commencement of any Interest Period for a Term Benchmark Borrowing, that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the CDOR Rate (including because the Relevant Screen Rate is not available or published on a current basis), for the applicable Agreed Currency and such Interest Period or (B) at any time, that adequate and reasonable means do not exist for ascertaining the applicable Adjusted Daily Simple RFR for the applicable Agreed Currency; or
(liii)the Administrative Agent is advised by the Required Lenders that (A) prior to the commencement of any Interest Period for a Term Benchmark Borrowing, the Adjusted Term SOFR Rate, the Adjusted EURIBOR Rate or the CDOR Rate for the applicable Agreed Currency and such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for the applicable Agreed Currency and such Interest Period or (B) at any time, the applicable Adjusted Daily Simple RFR for the applicable Agreed Currency will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining their Loans (or its Loan) included in such Borrowing for the applicable Agreed Currency;
then the Administrative Agent shall give notice thereof to the Parent Borrower and the Lenders through electronic system as provided in Section 10.1 as promptly as practicable thereafter and, until (x) the Administrative Agent notifies the Parent Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrowers deliver a new
Conversion/Continuation Notice in accordance with the terms of Section 2.8 or a new Funding Notice in accordance with the terms of Section 2.1, (A) for Loans to any US Borrower or any Canadian Borrower denominated in Dollars, (1) any Conversion/Continuation Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing shall instead be deemed to be an Conversion/Continuation Notice or a Borrowing Request, as applicable, for an ABR Borrowing and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an ABR Borrowing, (B) for Loans to any European Borrower denominated in Dollars, (1) any Conversion/Continuation Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing shall instead be deemed to be an Conversion/Continuation Notice or a Borrowing Request, as applicable, for an Alternate Rate Borrowing and (2) any Borrowing Request that requests an RFR Borrowing shall instead be deemed to be a Borrowing Request, as applicable, for an Alternate Rate Borrowing, (C) for Loans to any Canadian Borrower denominated in Canadian Dollars, any Conversion/Continuation Notice that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing shall instead be deemed to be an Conversion/Continuation Notice or a Borrowing Request, as applicable, for a Canadian Prime Rate Borrowing and (D) for Loans denominated in an Alternative Currency, any Conversion/Continuation Notice that requests the conversion of any Revolving Borrowing to, or continuation of any Revolving Borrowing as, a Term Benchmark Borrowing and any Borrowing Request that requests a Term Benchmark Borrowing or an RFR Borrowing, in each case, for the relevant Benchmark, shall be ineffective; provided that if the circumstances giving rise to such notice affect only one Type of Borrowing, then all other Types of Borrowings shall be permitted. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Parent Borrower’s receipt of the notice from the Administrative Agent referred to in this Section 2.25(a) with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until (x) the Administrative Agent notifies the Parent Borrower and the Lenders that the circumstances giving rise to such notice no longer exist with respect to the relevant Benchmark and (y) the Borrowers deliver a new Conversion/Continuation Notice in accordance with the terms of Section 2.8 or a new Borrowing Request in accordance with the terms of Section 2.1, (A) for Loans to any US Borrower or any Canadian Borrower denominated in Dollars, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day, and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an ABR Loan, (B) for Loans to any European Borrower denominated in Dollars,
(1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an Alternate Rate Loan on such day, and
(2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an Alternate Rate Loan, (C) for Loans to any Canadian Borrower denominated in Canadian Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan on such day and (D) for Loans denominated in an Alternative Currency, (1) any Term Benchmark Loan shall, on the last day of the Interest Period applicable to such Loan bear interest at the Central Bank Rate for the applicable currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable currency cannot be determined, any outstanding affected Term Benchmark Loans shall, at the Parent Borrower’s election prior to such day: (x) bear interest at the Alternate Rate, (y) be prepaid by the Borrowers on such day or (z) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan denominated in any currency shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable currency plus the CBR Spread; provided that, if
the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable currency cannot be determined, any outstanding affected RFR Loans, at the Parent Borrower’s election, shall either (x) bear interest at the Alternate Rate or (y) be prepaid in full immediately.
(b)Notwithstanding anything to the contrary herein or in any other Credit Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) of the definition of “Benchmark Replacement” with respect to Dollars for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” with respect to any Agreed Currency for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Credit Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Credit Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders of each affected Tranche.
(c)Notwithstanding anything to the contrary herein or in any other Credit Document, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Credit Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Credit Document.
(d)The Administrative Agent will promptly notify the Parent Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.25, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Credit Document, except, in each case, as expressly required pursuant to this Section 2.25.
(e)Notwithstanding anything to the contrary herein or in any other Credit Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate, EURIBOR Rate or CDOR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information
announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
(f)Upon the Parent Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any request for a Term Benchmark Borrowing or RFR Borrowing of, conversion to or continuation of Term Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, either (x) the Borrowers will be deemed to have converted any such request for a Term Benchmark Borrowing to any US Borrower or any Canadian Borrower denominated in Dollars into a request for a Borrowing of or conversion to an ABR Borrowing, (y) the Borrowers will be deemed to have converted any such request for a Term Benchmark Borrowing to any Canadian Borrower denominated in Canadian Dollars into a request for a Borrowing of or conversion to a Canadian Prime Rate Borrowing or (z) any Term Benchmark Borrowing or RFR Borrowing denominated in an Alternative Currency (or otherwise not addressed by the immediately preceding clause (x) or (y)) shall be ineffective. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR. Furthermore, if any Term Benchmark Loan or RFR Loan in any Agreed Currency is outstanding on the date of the Parent Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a Relevant Rate applicable to such Term Benchmark Loan or RFR Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 2.25(f) (A) for Loans to any US Borrower or any Canadian Borrower denominated in Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, an ABR Loan on such day, (B) for Loans to any Canadian Borrower denominated in Canadian Dollars, any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan, be converted by the Administrative Agent to, and shall constitute, a Canadian Prime Rate Loan on such day, (C) for Loans to any European Borrower denominated in Dollars, (1) any Term Benchmark Loan shall on the last day of the Interest Period applicable to such Loan shall on such day or the next succeeding Business Day, be converted by the Administrative Agent to, and shall constitute, an Alternate Rate Loan on such day and (2) any RFR Loan shall on and from such day be converted by the Administrative Agent to, and shall constitute an Alternate Rate Loan and (D) for Loans denominated in an Alternative Currency, (1) any Term Benchmark Loan shall, on the last day of the Interest Period applicable to such Loan bear interest at the Central Bank Rate for the applicable currency plus the CBR Spread; provided that, if the Administrative Agent determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable currency cannot be determined, any outstanding affected Term Benchmark Loans shall, at the Parent Borrower’s election prior to such day: (x) be prepaid by the Borrowers on such day or (y) solely for the purpose of calculating the interest rate applicable to such Term Benchmark Loan, such Term Benchmark Loan shall be deemed to be a Term Benchmark Loan denominated in Dollars and shall accrue interest at the same interest rate applicable to Term Benchmark Loans denominated in Dollars at such time and (2) any RFR Loan shall bear interest at the Central Bank Rate for the applicable currency plus the CBR Spread; provided that, if the Administrative Agent
determines (which determination shall be conclusive and binding absent manifest error) that the Central Bank Rate for the applicable currency cannot be determined, any outstanding affected RFR Loans, at the Parent Borrower’s election, shall either (x) bear interest at the Alternate Rate or (y) be prepaid in full immediately.
SECTION 3. CONDITIONS PRECEDENT
3.1Closing Date. Subject to Schedule 5.19, the effectiveness of this Agreement and the obligation of each Lender to make a Credit Extension hereunder on the Closing Date is subject to the satisfaction or waiver of the following conditions on or before the Closing Date:
(g)Credit Documents. The Administrative Agent shall have received copies of
(i) this Agreement and the Spanish Joinder Agreement, executed (and duly notarized when applicable) and delivered by each Credit Party, each Agent, each Issuing Bank, each Swing Line Lender and each Lender and (ii) each other Credit Document executed (and duly notarized when applicable) and delivered by each applicable Credit Party and each Applicable Agent party thereto.
(h)Organizational Documents; Incumbency. The Administrative Agent shall have received (i) copies of each Organizational Document executed and delivered by each Credit Party, as applicable, and, to the extent applicable in each relevant jurisdiction (other than Germany), certified as of a recent date by the appropriate governmental official, each dated the Closing Date or a recent date prior thereto; (ii) signature and incumbency certificates of the officers or directors of such Person executing the Credit Documents to which it is a party (or any other similar document, as applicable under the Laws of the relevant jurisdiction); (iii) resolutions of the Board of Directors or of any sole director (duly notarized in case of a Spanish Credit Party) and/or similar governing body of each Credit Party (including the shareholders or partners, in the case of any UK Credit Party or German Credit Party) and in the case of a Dutch limited partnership (commanditaire vennootschap) of the meeting of partners, and in case of a Spanish Credit Party, of its shareholders, duly notarized and in the case of a Polish Credit Party which is a limited liability company (spółka z ograniczoną odpowiedzialnością) or a Polish joint stock company (spółka akcyjna) of: (A) the management board; (B) the meeting of shareholders and/or
(C) the supervisory board, whichever is applicable pursuant to applicable laws and/or articles of association/statutes of such Polish Credit Party and of any other corporate body from which a resolution is required or customary, approving and authorizing the execution, delivery and performance of this Agreement and the other Credit Documents to which it is a party (and, when applicable granting a power of attorney authorising the person(s) specified therein to sign the Credit Documents to which the Credit Party is a party on behalf of each of the Credit Parties), certified as of the Closing Date by its secretary, director, manager or an assistant secretary, or, in the case of a Canadian Credit Party, any officer, as being executed and delivered and in full force and effect without modification or amendment or, if not applicable under the Laws of the relevant jurisdiction, in a similar form; (iv) to the extent applicable, a “long-form” good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation, each dated a recent date prior to the Closing Date (certificato di iscrizione dated not earlier than 5 Business Days from the date of execution of this Agreement in relation to an Italian Credit Party); (v) in the case of a German Borrower an excerpt from the commercial register dated a recent date prior to the Closing Date, along with a copy of the shareholders list; (vi) in the case of any Dutch Credit Party, (a) if required by law or in the context of any legal opinion required to be delivered hereunder, a copy of a resolution of the general meeting of the Dutch Credit Party, (b) if applicable, a copy of a resolution signed by the supervisory board of the Dutch Credit Party, and (c) if applicable, an unconditional or otherwise
acceptable positive or neutral advice from each relevant works’ council, including the request for advice, in relation to the resolutions of the Board of Directors referred to under (iii) above; (vii) in the case of a Polish Credit Party, an information equivalent to a full excerpt from Polish National Court Registry (informacja odpowiadająca odpisowi pełnemu z rejestru przedsiębiorców Krajowego Rejestru Sądowego) dated prior to the Closing Date; certificates from the Polish registry of registered pledges and central registry of treasury pledges confirming that there are no pledges over shares in the Polish Credit Parties or over assets of the Polish Credit Parties except only for pledges permitted pursuant to Credit Documents; as well as certificates from the relevant tax offices and Social Security Office (Zakład Ubezpieczeń Społecznych) or relevant management board declaration confirming that there are no outstanding taxes or social security premiums due from for the Polish Credit Parties; (viii) in respect of a Spanish Credit Party (a) a certificate from the Commercial Registry (certificación del Registro Mercantil) dated no earlier than 30 days prior to the date of this Agreement regarding due incorporation and existence (existencia y vigencia), solvency and no causes of winding up or dissolution (solvencia y ausencia de causas de disolución o liquidación), management body (órgano de administración), no insolvency (no insolvencia) to the extent provided by the relevant Registrar, the entries (inscripciones) regarding the three past years and including up to date and consolidated by-laws (estatutos actualizados y consolidados), (b) an online excerpt regarding the Spanish Credit Party issued by the Commercial Registry on the date of this Agreement and (c) copies of any documents which are pending registration with the relevant Commercial Registry as of the date of this Agreement, if any; (ix) a recent and up-to-date certified excerpt from the relevant commercial register (Handelsregisterauszug) regarding the Swiss Borrower and a copy of the up-to-date articles of association (Statuten) of the Swiss Borrower, certified by the relevant commercial register; (x) in the case of an Italian Credit Party, a good standing certificate (certificato di vigenza) issued by the competent Chamber of Commerce in relation to the Italian Credit Party, dated no more than 5 (five) business days prior to the Closing Date, confirming that no insolvency or similar procedures are pending against such Italian Credit Party; and (xi) in respect of the French Borrower, a certificate of the French Borrower, dated the Closing Date and executed by a legal representative (or authorized attorney), which shall (A) certify the relevant corporate approval documents (and powers of attorney, if applicable) authorizing the execution, delivery and performance of the Credit Documents to which it is a party, (B) identify by name and title and bear the signatures of any officers and directors of the French Borrower authorized to sign the Credit Documents to which it is a party, and (C) contain appropriate attachments, including (I) an electronic copy of the certificate of incorporation (k-bis) of the French Borrower dated 10 Business Days prior to the Closing Date maximum, (II) a true, correct and up-to-date copy of its bylaws (statuts), (III) an electronic copy of non-bankruptcy certificate (certificat de non-faillite) of the French Borrower dated no more than 10 Business Days prior to the Closing Date and (IV) an electronic copy of a lien search certificate (état des privilèges et des nantissements) of the French Borrower dated no more than 10 Business Days prior to the Closing Date (it being understood that for the purpose hereof, any reference to “electronic copy” includes any electronic copies of documents downloaded on the website www.infogreffe.fr).
(i)Officer’s Certificate. The Administrative Agent shall have received (A) an officer's certificate, dated the Closing Date, of each European Credit Party confirming, amongst other things, (i) compliance with the conditions set forth in Section 3.1(p) (Representations; No Default or Event of Default), (ii) solvency of that European Credit Party and (iii) that granting the Collateral Documents and/or the guarantee as contemplated under the Credit Documents will not cause any applicable limits on guaranteeing or security to be exceeded, together with such other customary items to be certified in accordance with the practice of the jurisdiction of the relevant Credit Party.
(j)TEG Letter. The Agent and the relevant Lenders shall have provided to the French Borrower the TEG Letter.
(k)Consummation of the Refinancing and TSA Transactions. Substantially simultaneously with the initial Borrowing hereunder:
(liv)the Refinancing shall be consummated and, after giving effect to the Transactions, Parent Borrower and its Subsidiaries shall have no outstanding third-party Indebtedness for borrowed money other than Indebtedness permitted to be incurred hereunder;
(lv)each Lender that, immediately prior to the Closing Date, was a “Lender” under and as defined in the Existing Credit Agreement shall have its Commitments (as defined in the Existing Credit Agreement) terminated in full and all outstanding principal, interest and fees owed to such Lender under the Existing Credit Agreement shall be repaid in full in immediately available funds; and
(lvi)the transactions set forth in the TSA shall be consummated in all material respects in accordance with the terms thereof.
(l)Minimum Availability and Liquidity. After giving pro forma effect to the Transactions (a) Excess Availability shall not be less than $18,000,000 (the “Closing Date Availability Condition”) and (b) the aggregate amount of unrestricted Cash or Cash Equivalents of the Parent Borrower and its Subsidiaries on the Closing Date shall not be less than
$170,000,000.
(m)Historical Financial Statements. The Lead Arrangers shall have received the financial statements described in Section 5.1(a) and 5.1(b) for the three most recently completed Fiscal Years ended at least 90 days prior to the date hereof and for each Fiscal Quarter ending after December 31, 2021 ended at least 45 days prior to the date hereof (other than any Fiscal Quarter ended on December 31).
(n)Subordination Agreement. The Administrative Agent shall have received a fully executed copy of the Subordination Agreement executed by all of the Credit Parties and any External Subsidiary which is a creditor to any Credit Party.
(o)Collateral and Guarantee Requirements.
(lvii)The Collateral and Guarantee Requirements shall have been satisfied; provided that to the extent that the Collateral and Guarantee Requirements (other than the execution of the Collateral Documents and the Guaranty, delivery of Uniform Commercial Code or PPSA financing statements with respect to perfection of security interests in all assets of the Credit Parties that may be perfected by the filing of a financing statement under the Uniform Commercial Code or the PPSA of any applicable jurisdiction, delivery of Intellectual Property Security Agreements in form for filing with the United States Patent and Trademark Office, United States Copyright Office and the Canadian Intellectual Property Office and the delivery of possessory collateral) cannot be satisfied at closing, are not satisfied as of the Closing Date after the Parent Borrower has used commercially reasonable efforts to do so, or are not required to be satisfied at closing pursuant to the applicable Collateral Document, the satisfaction of such requirements shall not be a condition to the effectiveness of this Agreement and the
obligation of each Lender to make a Credit Extension hereunder on the Closing Date (but shall be required to be satisfied as promptly as practicable after the Closing Date and in any event within the period specified therefor in Schedule 5.19 or, in each case, such later date as the Administrative Agent may reasonably agree). The Collateral Agent shall have received (i) a completed Perfection Certificate dated the Closing Date and signed by an Authorized Officer of each of the Parent Borrower and each Credit Party, together with all attachments contemplated thereby and (ii) results of (x) searches of the Uniform Commercial Code filings (or equivalent filings, including PPSA filings) and (y) bankruptcy, judgment, tax and Intellectual Property lien searches requested by the Administrative Agent, together with (in the case of clause (x)) copies of the financing statements (or similar documents) disclosed by such search and evidence reasonably satisfactory to the Administrative Agent that the Liens indicated by such financing statements (or other documents) are permitted by hereunder or have been or will be released in connection with the Credit Extension made hereunder on the Closing Date; and
(lviii)The Administrative Agent shall have received (A) a Landlord Personal Property Collateral Access Agreement executed by the landlord of any Leasehold Property that has located therein any Eligible Inventory with a value in excess of
$2,000,000 and (B) a Bailee’s Letter executed by each Person that is in possession of Eligible Inventory on behalf of such Credit Party (other than the Swiss Borrower) with a value in excess of $2,000,000; provided that to the extent the Borrowers or the applicable Guarantor is unable to deliver to the Applicable Collateral Agent on the Closing Date, after using commercially reasonable efforts to do so, such Landlord Personal Property Collateral Access Agreements or Bailee’s Letters, such Credit Party shall comply with the requirements of Section 5.16.
(p)UK Pensions. Evidence satisfactory to the Administrative Agent that Dalriada Trustees Limited, in its capacity as trustee of the Wincor Nixdorf Defined Benefit Pension Scheme, has confirmed in writing to Diebold Nixdorf UK Limited its non-objection to the Transactions and to Diebold Nixdorf UK Limited’s participation in the Transactions.
(q)Evidence of Insurance. The Applicable Collateral Agent shall have received a certificate from each insurance broker or other evidence reasonably satisfactory to it and the Administrative Agent that all insurance required to be maintained pursuant to Section 5.6 is in full force and effect.
(r)Opinions of Counsel. The Agents and the Lenders shall have received favorable written opinions of (i) Sullivan & Cromwell LLP, counsel for the Credit Parties (ii) Jones Day, Ohio counsel for the Credit Parties; (iii) Sullivan & Cromwell LLP, French counsel for the Credit Parties (capacity opinion) and Mayer Brown LLP, French counsel for the Administrative Agent;
(iv) Sullivan & Cromwell LLP, German counsel for the Credit Parties (capacity opinion), and Mayer Brown LLP, German counsel for the Administrative Agent; (v) Jones Day, Belgian counsel for the Credit Parties; (vi) NautaDutilh BV/SRL, Belgian counsel for the Administrative Agent; (vii) NautaDutilh N.V., Dutch counsel for the Administrative Agent; (viii) McMillan LLP, Canadian Counsel for the Credit Parties (and any other local Canadian counsel as may be required in order to furnish a local opinion reasonably requested by the Administrative Agent);
(ix) Wigge & Partners Advokat KB, Swedish counsel to the Administrative Agent; (x) Mayer Brown International LLP, English counsel for the Administrative Agent; (xi) Gattai, Minoli, Partners, Italian counsel to the Administrative Agent; (xii) Jones Day, Italian counsel for the Credit Parties; (xiii) [Reserved]; (xiv) Norton Rose Fulbright Dyczkowski and Partners, LLP,
Polish counsel to the Administrative Agent; (xv) Jones Day, Spanish counsel for the Credit Parties; (xvi) Cuatrecasas, Gonçalves Pereira S.L.P., Spanish counsel to the Administrative Agent; and (xvii) Tavernier Tschanz, Swiss counsel to the Swiss Borrower, in each case, as to such matters as the Administrative Agent may reasonably request, dated as of the Closing Date and in form and substance reasonably satisfactory to the Administrative Agent (and each Credit Party hereby instructs each of its counsel to deliver such opinions to the Agents and Lenders).
(s)Fees and Expenses. The Parent Borrower and/or the Borrowers shall have paid to the Lead Arrangers and the Agents the fees payable on the Closing Date referred to in Section 2.10(d). The Parent Borrower and/or the Borrowers shall have paid to the Applicable Agent all out-of-pocket expenses required under the Credit Documents or any fee or similar letters executed by the Parent Borrower in connection herewith to be reimbursed or paid by the Parent Borrower and its Subsidiaries, to the extent invoiced in writing to the Parent Borrower in reasonable detail at least three Business Days prior to the Closing Date.
(t)Solvency Certificate. On the Closing Date, the Administrative Agent shall have received a Solvency Certificate from the chief financial officer of the Parent Borrower.
(u)Closing Date Certificate. The Parent Borrower shall have delivered to the Administrative Agent an original executed Closing Date Certificate.
(v)Representations; No Default or Event of Default.
(lix)The representations and warranties of the Credit Parties set forth in the Credit Documents shall be true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects).
(lx)No event shall have occurred and be continuing or would result from the consummation of the Transactions that would constitute a Default or an Event of Default.
(w)Borrowing Base. The Administrative Agent shall have received a Borrowing Base Certificate with respect to the US Borrowing Base, the Total Shared Borrowing Base, the Global Borrowing Base, the French Borrowing Base, each German Borrowing Base, the Canadian Borrowing Base, the Italian Borrowing Base, the Belgian Borrowing Base, the Polish Borrowing Base, the Dutch Borrowing Base, the Swedish Borrowing Base the UK Borrowing Base and the Spanish Borrowing Base, each calculated as of October 31, 2022, which meets the requirements of Section 5.12(a).
(x)Patriot Act Information; Beneficial Ownership. The Administrative Agent shall have received, at least five (5) days prior to the Closing Date, all documentation and other information regarding the Borrowers requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Canadian Anti-Money Laundering & Anti-Terrorism Legislation, to the extent requested in writing of the Borrowers at least ten (10) days prior to the Closing Date, and (i) to the extent any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, at least five (5) days prior to the Closing Date, any Lender that has requested, in a written notice to the Borrowers at least ten (10) days prior to the Closing Date, a Beneficial Ownership Certification in relation to each Borrower shall have received such Beneficial Ownership
Certification (provided that, upon the execution and delivery by such Lender of its signature page to this Agreement, the condition set forth in this clause (ii) shall be deemed to be satisfied.
(y)Inventory Appraisal. The Administrative Agent shall have received and be satisfied with a field exam and inventory appraisal from an appraiser acceptable to the Administrative Agent.
(z)Notices. The Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be.
(aa)Spanish Collateral Documents. The Spanish Collateral Documents have been duly executed as Spanish Public Documents and create legal, valid and enforceable Liens on, and security interests in, all of the Credit Parties’ right, title and interest in and to the Collateral described therein, only subject to, if applicable, its registration in the relevant registries.
Each Lender, by delivering its signature page to this Agreement and funding a Loan on the Closing Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be approved by any Agent, Required Lenders or Lenders, as applicable on the Closing Date.
3.2Conditions Precedent to Each Credit Extension After the Closing Date. The obligation of each Lender to make any Loan, or Issuing Bank to issue any Letter of Credit, on any Credit Date, is subject to the satisfaction, or waiver in accordance with Section 10.5, of the following conditions precedent:
(ab)the Administrative Agent shall have received a fully executed and delivered Funding Notice or Issuance Notice, as the case may be;
(ac)after making the Credit Extensions requested on such Credit Date, the Tranche A Revolving Credit Outstandings shall not exceed the Tranche A Maximum Credit then in effect, the Tranche B Revolving Credit Outstandings shall not exceed the Tranche B Maximum Credit then in effect, the Tranche C Revolving Credit Outstandings shall not exceed the Tranche C Maximum Credit then in effect and such Credit Extensions shall not result in a breach of any of the Borrowing Conditions;
(ad)as of such Credit Date, the representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects on and as of that Credit Date to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date;
(ae)as of such Credit Date, no event shall have occurred and be continuing or would result from the consummation of the applicable Credit Extension that would constitute a Default or an Event of Default;
(af)on or before the date of issuance of any Letter of Credit, the Administrative Agent shall have received all other information required by the applicable Issuance Notice, and such other documents or information as the applicable Issuing Bank may reasonably require in connection with the issuance of such Letter of Credit;
(ag)to the extent the proceeds of any such Credit Extension will be use to repay the Existing 2023 Term Loans or the Existing 2024 Notes, the Payment Conditions shall be satisfied on a Pro Forma Basis; and
(ah)the earlier to occur of (i) the expiration of the Specified Availability Period and
(ii) Excess Availability being equal to or greater than $50,000,000, as demonstrated by a Borrowing Base Certificate delivered by the Parent Borrower to the Administrative Agent on such date.
SECTION 4. REPRESENTATIONS AND WARRANTIES
Each Credit Party represents and warrants to the Lenders on the Closing Date and each other date such representations and warranties are made pursuant to the Credit Documents, that:
4.1Corporate Existence and Standing. Each Credit Party and, other than as would not reasonably be expected to have a Material Adverse Effect, each of their Subsidiaries is a corporation, partnership, limited liability company, unlimited liability company or other organization, duly organized and validly existing under the laws of its jurisdiction of organization and has all requisite corporate, partnership, company or similar authority to conduct its business as presently conducted (in each case, in the case of Foreign Subsidiaries, to the extent such legal concepts are applicable thereto).
4.2Authorization and Validity. Each Credit Party has the corporate or other power and authority and legal right to execute and deliver the Credit Documents to which it is a party and to perform its obligations thereunder. The execution and delivery by each Credit Party of the Credit Documents to which it is a party and the performance of its obligations thereunder have been duly authorized by proper corporate or other applicable company proceedings. Each Credit Document has been duly executed and delivered on behalf of each Credit Party party thereto. Each Credit Document constitutes a legal, valid and binding obligation of each Credit Party party thereto, enforceable against each such Credit Party in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity.
4.3No Conflict; Government Consent. Neither the execution and delivery by the Credit Parties of the Credit Documents, nor the consummation of the transactions therein contemplated, nor compliance with the provisions thereof will violate any law, rule, regulation, order, writ, judgment, injunction, decree or award binding on the Parent Borrower or any of its Subsidiaries or the Parent Borrower’s or any Subsidiary’s constitutive documents or the provisions of any material indenture, instrument or agreement to which the Parent Borrower or any of its Subsidiaries is a party or is subject, or by which it, or its Property, is bound, or conflict with or constitute a default thereunder, or result in the creation or imposition of any Lien (other than Permitted Liens) in, of or on the Property of the Parent Borrower or a Subsidiary pursuant to the terms of any such indenture, instrument or agreement. Other than those that have been obtained, no order, consent, approval, license, authorization, or validation of, or filing, recording, notarization or registration with, or exemption by, or other action in respect of any governmental or public body or authority, or any subdivision thereof, is required to authorize, or is required in connection with the execution, delivery and performance of, or the legality, validity, binding effect or enforceability of, any of the Credit Documents.
4.4Financial Statements. The Parent Borrower has heretofore furnished to the Lenders the Parent Borrower’s consolidated balance sheet and statements of income, stockholders equity and cash flows (i) as of and for the fiscal year ended December 31, 2021, reported on by KPMG, independent public accountants, and (ii) as of and for the fiscal quarter and the portion of the fiscal year ended September 30, 2022. All financial statements of the Parent Borrower and its Subsidiaries delivered to the
Administrative Agent pursuant to clause (a) or (b) of Section 5.1 or Section 3 on and after the Closing Date were prepared in accordance with generally accepted accounting principles in effect on the date such statements were prepared and fairly present in all material respects the consolidated financial condition and operations of the Parent Borrower and its Subsidiaries (other than in the case of annual financial statements, subject to the absence of footnotes and year-end audit adjustments).
4.5Material Adverse Effect. Since the Closing Date, there has been no change in the business, Property, operations or condition (financial or otherwise) of the Parent Borrower and its Subsidiaries, taken as a whole, which could reasonably be expected to have a Material Adverse Effect.
4.6Taxes. Each of the Parent Borrower and its Subsidiaries has filed all United States federal tax returns and all other tax returns that are required to be filed with any Governmental Authority and has paid all Taxes required to be paid by it, except (i) such Taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided in accordance with GAAP and as to which no Lien (other than Permitted Liens) exists or (ii) where the failure to do so could not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect. No tax Liens have been filed and no claims are being asserted with respect to any such Taxes, other than as permitted by Section 6.5. No Credit Party is a member of a tax group for VAT and/or corporate income tax purposes other than such a group made up solely of Credit Parties. Each Credit Party is resident for Tax purposes solely in its jurisdiction of incorporation.
4.7Litigation and Guarantee Obligations. Except as set forth on Schedule 4.7 hereto, there is no litigation, arbitration or proceeding pending or, to the knowledge of any of the Parent Borrower’s executive officers, any governmental investigation or inquiry pending or any litigation, arbitration, governmental investigation, proceeding or inquiry threatened in writing against or affecting the Parent Borrower or any of its Subsidiaries that could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of the Credit Extensions. Other than any liability incident to such litigation, arbitration or proceedings listed on Schedule 4.7, the Parent Borrower and its Subsidiaries have no material Guarantee Obligations not provided for or disclosed in financial statements referred to in Section 4.4 that could reasonably be expected to have a Material Adverse Effect.
4.8Subsidiaries. Schedule 4.8 hereto contains an accurate list of all Subsidiaries of the Parent Borrower as of the Closing Date, setting forth their respective jurisdictions of incorporation or organization and the percentage of their respective Capital Stock owned by the Parent Borrower or other Subsidiaries. All of the issued and outstanding shares of Capital Stock of such Subsidiaries held by the Parent Borrower have been duly authorized and issued and are fully paid and non assessable (to the extent such concepts are applicable).
4.9Pension Matters.
(ai)No ERISA Event has occurred or is reasonably expected to occur that, when taken together with all other ERISA Events for which liability is reasonably expected to occur, could reasonably be expected to result in a Material Adverse Effect. Each Pension Plan is in compliance with the applicable provisions of ERISA and the Code except where such non- compliance could not reasonable be expected to have a Material Adverse Effect. No Credit Party or ERISA Affiliate has made an amendment to a Pension Plan that could result in the posting of a bond or other security under Section 436(f)(1) of the Code having a value individually or collectively in excess of $50,000,000. No Foreign Benefit Plan Event has occurred that could reasonably be expected to have a Material Adverse Effect. No Lien has been imposed upon any Credit Party pursuant to Section 430(k) of the Code or Section 303(k) of ERISA.
(aj)Except as set forth on Schedule 4.9 hereto, The present value of all accumulated benefit obligations under each Pension Plan (based on the assumptions used to fund such Pension Plan) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $50,000,000 the fair market value of the assets of such Pension Plan, and the present value of all accumulated benefit obligations of all underfunded Pension Plans (based on the assumptions used to fund such Pension Plan) did not, as of the date of the most recent financial statements reflecting such amounts, exceed by more than $50,000,000 the fair market value of the assets of all such underfunded Pension Plans.
(ak)Other than in connection with the Wincor Nixdorf Defined Benefit Pension Scheme, no UK Credit Party nor any of its Subsidiaries or Affiliates is or has at any time been (i) an employer (for the purposes of sections 38 to 51 of the United Kingdom's Pensions Act 2004) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the United Kingdom's Pensions Schemes Act 1993) or (ii) “connected” with or an “associate” (as those terms are used in sections 38 and 43 of the United Kingdom's Pensions Act 2004) of such an employer.
(al)No Credit Party maintains, sponsors, administers, contributes to, participates in or has any liability in respect of any Canadian Defined Benefit Plan, nor has any such Person ever maintained, sponsored, administered, contributed or participated in any Canadian Defined Benefit Plan. Any and all Canadian Pension Plans are duly registered under the Tax Act and any other applicable laws which require registration, have been administered in accordance with the Tax Act and such other applicable law and no event has occurred which could cause the loss of such registered status. All obligations of the Credit Parties (including fiduciary, funding, investment and administration obligations) required to be performed in connection with the Canadian Pension Plans and the funding agreements relating thereto have been performed on a timely basis. All contributions or premiums required to be made or paid by the Credit Parties and their Subsidiaries to the Canadian Pension Plans have been made on a timely basis in accordance with the terms of such plans and all applicable laws. No Lien has arisen, choate or inchoate, in connection with any Canadian Pension Plan (save for contribution amounts not yet due).
(am)All pension schemes operated by or maintained for the benefit of any Credit Party and/or any of their respective employees have been contributed to to the extent required by applicable local law and regulation, except where failure to do so does not have and is not reasonably likely to have a Material Adverse Effect.
4.10Accuracy of Information. No information, exhibit or report furnished by the Parent Borrower or any of its Subsidiaries in writing to the Applicable Agent or to any Lender in connection with the negotiation of the Credit Documents contain, when taken as a whole, any material misstatement of fact or omitted to state a material fact or any fact necessary to make the statements contained therein not misleading in light of the circumstances in which made, as of the date thereof; provided, however, that with respect to projected financial information and information of a general economic or industry specific nature, the Parent Borrower represents only that such information has been prepared in good faith based on assumptions believed by the Parent Borrower to be reasonable.
4.11Regulations T, U and X. Neither the Parent Borrower nor any of its Subsidiaries extends or maintains, in the ordinary course of business, credit for the purpose, whether immediate, incidental, or ultimate, of buying or carrying Margin Stock, and no part of the proceeds of any Credit Extension will be used for the purpose, whether immediate, incidental, or ultimate, of buying or carrying any such Margin Stock or maintaining or extending credit to others for such purpose in any way that would violate Regulation T, U or X. After applying the proceeds of each Credit Extension, Margin Stock will not
constitute more than 25% of the value of the assets (either of the Parent Borrower alone or of the Parent Borrower and its Subsidiaries on a consolidated basis) that are subject to any provisions of any Credit Document that may cause the Credit Extensions to be deemed secured, directly or indirectly, by Margin Stock. The Parent Borrower and its Subsidiaries are in compliance with Section 5.2.
4.12Use of Proceeds. The proceeds of the Loans and Letters of Credit shall be used only to finance the Transactions, to finance the ongoing working capital requirements of the Borrowers and their respective Subsidiaries and for other general corporate purposes.
4.13Compliance With Laws; Properties. The Parent Borrower and its Subsidiaries have complied with all applicable statutes, rules, regulations, orders and restrictions of any domestic or foreign government or any instrumentality or agency thereof having jurisdiction over the conduct of their respective businesses or the ownership of their respective Property, failure to comply with which could reasonably be expected to have a Material Adverse Effect.
4.14Plan Assets; Prohibited Transactions. None of the Credit Parties have engaged in any non-exempt prohibited transaction within the meaning of Section 406 of ERISA or Section 4975 of the Code that, either individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.
4.15Environmental Matters. The Parent Borrower and its Subsidiaries are not and have not been in violation of any Environmental Laws in such a fashion that could reasonably be expected to have a Material Adverse Effect. Neither the Parent Borrower nor any Subsidiary has received any written notice regarding liabilities under or compliance with Environmental Laws or are the subject of any litigation, arbitration, governmental investigation, proceeding or inquiry related to Environmental Laws, Hazardous Substances or Remedial Action, except in each case as would not reasonably be expected to have a Material Adverse Effect. Except as would not reasonably be expected to have a Material Adverse Effect, neither the Parent Borrower nor any Subsidiary has incurred any Environmental Liability.
4.16Investment Company Act. No Credit Party is an “investment company” or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended and none of the UK Credit Parties carries on any business in the United Kingdom which requires it to be authorized by the United Kingdom Financial Conduct Authority or the United Kingdom Prudential Regulation Authority.
4.17Subsidiary Borrowers. Each Subsidiary Borrower is a direct or indirect Wholly Owned Subsidiary of the Parent Borrower.
4.18Insurance. The Parent Borrower and its Subsidiaries maintain insurance with financially sound and reputable insurance companies (or self-insurance programs) on their Property in such amounts (with such customary deductibles, exclusions and self-insurance) and covering such risks as management of the Parent Borrower reasonably considers consistent with sound business practice.
4.19Ownership of Properties. On the Closing Date, the Parent Borrower and its Subsidiaries will have good and marketable fee simple to, or a valid leasehold interest in, all of its real property, including the Mortgaged Properties, and all Property and assets reflected in their financial statements for such date as owned, leased or otherwise held by them, free and clear of all Liens other than Permitted Liens.
4.20Labor Controversies. There are no labor controversies pending or, to the best of the Parent Borrower’s knowledge, threatened against the Parent Borrower or any Subsidiary, that could reasonably be expected to have a Material Adverse Effect.
4.21Burdensome Obligations. The Parent Borrower does not presently anticipate that future expenditures needed to meet the provisions of federal or state statutes, orders, rules or regulations will be so burdensome as to cause a Material Adverse Effect.
4.22Patriot Act. None of the Parent Borrower or its Subsidiaries is in violation, in any material respect, of any applicable law primarily relating to counter-terrorism including, without limitation, the United States Executive Order No. 13224 on Terrorist Financing, effective September 24, 2011, the Patriot Act or the Canadian Anti-Money Laundering & Anti-Terrorism Legislation.
4.23Anti-Corruption Laws and Sanctions. The Borrowers have implemented, maintain in effect and enforce policies and procedures designed to ensure compliance by the Parent Borrower, its Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with applicable Anti-Corruption Laws and applicable Sanctions, and the Parent Borrower, its Subsidiaries and their respective officers and employees (in their respective capacities as such) and to the knowledge of the Parent Borrower, its directors and agents (in their respective capacities as such), are in compliance with applicable Anti-Corruption Laws and applicable Sanctions in all material respects. None of (a) the Parent Borrower, any Subsidiary or any of their respective officers or employees, or (b) to the knowledge of the Parent Borrower, any director or agent of the Parent Borrower or any Subsidiary that will act in any capacity in connection with or benefit from the credit facility established hereby, is a Sanctioned Person described in clause (a) of the definition thereof (or a Person owned or controlled by any Person described in such clause (a)), or a Sanctioned Person as described in clause (b) of the definition thereof in violation in any material respect of Sanctions. No Credit Extension, use of proceeds or other transaction contemplated by this Agreement will violate Anti-Corruption Laws or Sanctions. The foregoing representations in this Section 4.23 will not apply to any party hereto (A) to which the Blocking Regulation applies, if and to the extent that such representations are or would be unenforceable by or in respect of that party pursuant to, or would otherwise result in a breach and/or violation of, (i) any provision of the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the European Union), (ii) any similar blocking or anti-boycott law in the United Kingdom or (iii) Section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung), or
(B) that qualifies as a corporation that is registered or incorporated under the laws of Canada or any province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) in so far as such representations would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.
4.24Intellectual Property; Licenses, Etc. Except as would not reasonably be expected to have a Material Adverse Effect or as set forth in Schedule 4.24, (a) the Parent Borrower and each of its Subsidiaries own, or possess a valid license or legal right to use, all Intellectual Property used in, held for use in or necessary for the conduct of the respective businesses of the Parent Borrower and its Subsidiaries, free and clear of all Liens other than Permitted Liens, (b) none of the Parent Borrower or its Subsidiaries are infringing upon, misappropriating or otherwise violating any Intellectual Property of any person, and there are no claims or litigation pending or, to the knowledge of the Credit Parties, threatened against the Parent Borrower or any of its Subsidiaries alleging the foregoing and (c) there are no claims or litigation pending or, to the knowledge of the Credit Parties, threatened by or against the Parent Borrower or any of its Subsidiaries relating to any of the Intellectual Property owned by the Parent Borrower or any of its Subsidiaries.
4.25Solvency. As of the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date:
(an)(i) in respect of the French Borrower, no French Insolvency Event will have occurred (ii) in respect of the UK Borrower, no UK Insolvency Event will have occurred; (iii) in respect of the Italian Borrower, it is not in any of the situations referred to under art. 2446, 2447, 2482bis and/or 2482ter of the Italian Civil Code and no facts, events and/or circumstances occurred which may be reasonably expected to cause the occurrence of any of the situations referred to under art. 2446, 2447, 2482bis and/or 2482ter of the Italian Civil Code; (iv) in respect of the Polish Borrower, no Polish Insolvency Event will have occurred; (v) in respect of each German Borrower, no German Insolvency Event will have occurred; (vi) in respect of the Swiss Borrower, no Swiss Insolvency Event will have occurred; (vii) in respect of the Spanish Borrower, no Spanish Insolvency Event will have occurred; (viii) in respect of the Dutch Borrower, no Dutch Insolvency Event will have occurred; (ix) with respect to each Swedish Credit Party on an individual basis, each such Person is not insolvent pursuant to applicable law; and (x) in respect of the Belgian Borrower, no Belgian Insolvency Event will have occurred;
(ao)with respect to each Canadian Credit Party on an individual basis, each such Person is not an “insolvent person” as defined in the Bankruptcy and Insolvency Act (Canada); and
(ap)(i) each of the Fair Value and the Present Fair Salable Value of the assets of the Parent Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Parent Borrower and its Subsidiaries taken as a whole Do Not Have Unreasonably Small Capital; and (iii) the Parent Borrower and its Subsidiaries taken as a whole Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature.
For the purposes hereof, (a) the term “Fair Value” means the amount at which the assets (both tangible and intangible), in their entirety, of the Parent Borrower and its Subsidiaries taken as a whole would change hands between a willing buyer and a willing seller, within a commercially reasonable period of time, each having reasonable knowledge of the relevant facts, with neither being under any compulsion to act; (b) the term “Present Fair Salable Value” means the amount that could be obtained by an independent willing seller from an independent willing buyer if the assets (both tangible and intangible) of the Parent Borrower and its Subsidiaries taken as a whole are sold on a going concern basis with reasonable promptness in an arm’s-length transaction under present conditions for the sale of comparable business enterprises insofar as such conditions can be reasonably evaluated; (c) the term “Stated Liabilities” means the recorded liabilities (including contingent liabilities that would be recorded in accordance with GAAP) of the Parent Borrower and its Subsidiaries taken as a whole, as of the applicable date, after giving effect to the consummation of the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on such applicable date), determined in accordance with GAAP consistently applied; (d) the term “Identified Contingent Liabilities” means the maximum estimated amount of liabilities reasonably likely to result from pending litigation, asserted claims and assessments, guaranties, uninsured risks and other contingent liabilities of the Parent Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the applicable date) (including all fees and expenses related thereto but exclusive of such contingent liabilities to the extent reflected in Stated Liabilities), as identified and explained in terms of their nature and estimated magnitude by responsible officers of the Parent Borrower, (e) the term “Can Pay Their/Its Stated Liabilities and Identified Contingent Liabilities as they mature” means that the Parent Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including
the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the applicable date) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable; and (f) the term “Do/Does Not Have Unreasonably Small Capital” means the Parent Borrower and its Subsidiaries taken as a whole after giving effect to the Transactions (including the execution and delivery of this Agreement, the making of the Loans and the use of proceeds of such Loans on the applicable date) have sufficient assets and cash flow to pay their respective Stated Liabilities and Identified Contingent Liabilities as those liabilities mature or (in the case of contingent liabilities) otherwise become payable.
4.26Affected Financial Institutions. No Credit Party is an Affected Financial Institution.
4.27Perfection, Etc.
(aq)On and after the Closing Date, the Collateral Documents are effective to create in favor of the Applicable Collateral Agent for the benefit of the Secured Parties, legal, valid and enforceable (subject to applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity) Liens on, and security interests in, the Collateral and, when (i) financing statements and other filings in appropriate form are filed in the offices specified on Schedule 4.27, (ii) Intellectual Property Security Agreements are filed with and recorded by the United States Patent and Trademark Office, the United States Copyright Office, or any foreign counterparts of the foregoing, as applicable, and (iii) upon the taking of possession or control by the Applicable Collateral Agent of the Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Applicable Collateral Agent to the extent possession or control by the Applicable Collateral Agent is required by the applicable Collateral Document), the Liens created by the Collateral Documents shall constitute fully perfected first priority Liens (subject only to Permitted Liens) on, and security interests in, all right, title and interest of the grantors in the Collateral to the extent perfection is required in accordance with the terms of the Collateral Documents (other than such Collateral in which a security interest cannot be perfected (x) under the UCC as in effect at the relevant time in the relevant jurisdiction by the filing of a financing statement, (y) possession or control by the secured party, or (z) through filings with the United States Patent and Trademark Office, the United States Copyright Office, or any foreign counterparts of the foregoing, as applicable), in each case subject to (i) no Liens other than Liens permitted under the Credit Documents and
(ii) the terms of the Intercreditor Agreement.
(ar)Each Collateral Document (other than Mortgages or any other registrable Spanish Collateral Documents) delivered pursuant to Section 5.9 will, upon execution and delivery thereof, be effective to create in favor of the Applicable Collateral Agent, for the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Credit Parties’ right, title and interest in and to the applicable Collateral described therein, and (i) when all appropriate filings or recordings are made in the appropriate offices as may be required under applicable law, (ii) upon the taking of possession or control by the Applicable Collateral Agent of such Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Applicable Collateral Agent to the extent required by any Collateral Document) and (iii) solely to the extent required by applicable local law, any notices to shareholders, account banks or other third parties have been made or, in the case of any Polish Collateral Documents, any motions, notices, filings or acknowledgements made under or in connection with any Polish Collateral Documents have been filed, dispatched or made on terms specified in respective Polish Collateral Document or respective provisions of
Polish law, such Collateral Document will constitute fully perfected first priority Liens on, and security interests in, all right, title and interest of the Credit Parties (other than the Swiss Borrower) in such Collateral (to the extent intended to be created thereby and required to be perfected under the Credit Documents), in each case subject to no Liens other than the Liens permitted under the Credit Documents.
(as)Each Mortgage and any other registrable Spanish Collateral Documents delivered pursuant to Section 5.9 will be in a form that, when duly executed and delivered (and, when required under the relevant law, registered in the relevant registry), will be effective to create, in favor of the Applicable Collateral Agent, for its benefit and the benefit of the Secured Parties, legal, valid and enforceable Liens on, and security interests in, all of the Credit Parties’ (other than the Swiss Borrower) right, title and interest in and to the Mortgaged Property thereunder and the proceeds thereof, subject only to Permitted Liens, and when such Mortgage is duly executed and delivered and properly filed (together with all other necessary filings, if any, in appropriate form) in the applicable office specified in the offices specified in the local counsel opinion delivered with respect thereto in accordance with the provisions of Section 5.9, such Mortgage shall constitute fully perfected Liens on, and security interests in, all right, title and interest of the Credit Parties (other than the Swiss Borrower) in the Mortgaged Property contemplated thereby and the proceeds thereof, in each case prior and superior in right to any other Person, other than Permitted Liens.
(at)Each Collateral Document not described in clauses (a) through (c) above creates valid security interests in, and Liens on, the Collateral covered thereby, which security interests and Liens will be, upon the taking of all required perfection actions in each applicable jurisdiction, and except to the extent otherwise expressly provided for herein or in the Collateral Documents, perfected security interests and Liens, prior to all other Liens (other than Permitted Liens having priority over the Liens of the Applicable Collateral Agent (subject, in the case of the Liens securing the obligations under the Fixed Asset Facilities, to the Intercreditor Agreement)).
4.28Centre of Main Interests and Establishments
(au)The (a) centre of main interests (as that term is used in Article 3(1) of the Insolvency Regulation) of each European Credit Party (other than a UK Credit Party) is situated in its jurisdiction of incorporation and each such European Credit Party has no “establishment” (as that term is used in Article 2(10) of the Insolvency Regulation) in any other jurisdiction (or in each case any equivalent provision(s) of any applicable successor to the Insolvency Regulation which may apply from time to time); and (b) centre of main interests (as that term is used in Article 3(1) of the Retained Insolvency Regulation) of each UK Credit Party is situated in its jurisdiction of incorporation and each such UK Credit Party has no “establishment” (as that term is used in Article 2(10) of the Retained Insolvency Regulation) in any other jurisdiction (or in each case any equivalent provision(s) of any applicable successor to the Retained Insolvency Regulation or the Insolvency Regulation, respectively, which may apply from time to time).
4.29Compliance with Swiss Non-Bank Rules. Each Swiss Borrower is compliant with the Swiss Non-Bank Rules; provided, however, that it shall not be in breach of this representation if the relevant number of creditors, which are Swiss Non-Qualifying Banks, is exceeded solely by reason of a breach by one or more Lenders of a confirmation contained in Section 2.19(s) or a failure by one or more Lenders to comply with their obligations in Section 10.6. For the purposes of this Section, each Swiss Borrower shall assume that the aggregate number of Lenders which are Swiss Non-Qualifying Banks is ten.
4.30COVID Loans. No Swiss Borrower has been granted a loan under (a) the Ordinance regarding the granting of loans and sureties in connection with Covid-19 (Verordnung zur Gewährung von Krediten und Solidarbürgschaften in Folge des Coronavirus) of the Swiss Federal Council dated 25 March 2020, as amended (SR 951.261) (as replaced by the Swiss Joint and Several Guarantee Act) or
(b) the Swiss Joint and Several Guarantee Act or under any similar federal or cantonal programme in Switzerland.
4.31Segregation of assets under the Italian Civil Code. No Italian Credit Party has created any patrimonio destinato ad uno specifico affare nor has incurred any finanziamento destinato ad uno specifico affare pusuant to article 2447-bis and following of the Italian Civil Code.
4.32Direzione e coordinamento. The Italian Credit Party is subject to the “attività di direzione e coordinamento” pursuant to art. 2497 and ff. of the Italian Civil Code of the Parent Borrower.
SECTION 5. AFFIRMATIVE COVENANTS.
Each Credit Party covenants and agrees that so long as any Revolving Commitment is in effect and until payment in full of all Obligations under the Credit Documents (other than Contingent Obligations) and cancellation, expiration, cash collateralization or backstop (on terms and conditions acceptable to the Administrative Agent) of all Letters of Credit, each Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1Financial Statements and Other Reports. The Parent Borrower will maintain, for itself and each Subsidiary, a system of accounting established and administered in accordance with GAAP, and furnish to the Administrative Agent, for the benefit of the Lenders (or in the case of clause (h) below, the Lenders specified therein):
(av)Annual Financial Statements. Within 90 days (or such earlier date as the Parent Borrower may be required to file its applicable annual report on Form 10-K by the rules and regulations of the SEC) after the close of each of its fiscal years, an audit report (without a “going concern” or like qualification or exception and without any qualification or exception as to the scope of such audit (other than any such exception or qualification related to impending maturity of any Loans or Commitments under this Agreement, the Existing 2023 Term Loans or the Existing 2024 Notes or a prospective breach of a financial covenant in Section 6.1)) certified by independent certified public accountants reasonably acceptable to the Administrative Agent, prepared in accordance with GAAP on a consolidated basis for itself and its Subsidiaries, including balance sheets as of the end of such period, related profit and loss statements, and a statement of cash flows, and if available to the Parent Borrower after the Parent Borrower’s use of commercially reasonable efforts to so obtain, accompanied by a certificate of said accountants that, in the course of their examination necessary for their certification of the foregoing, they have obtained no knowledge of any Default or Event of Default, or if, in the opinion of such accountants, any Default or Event of Default shall exist, stating the nature and status thereof.
(aw)Quarterly Financial Statements. Within 45 days (or such earlier date as the Parent Borrower may be required to file its applicable quarterly report on Form 10-Q by the rules and regulations of the SEC) after the close of each of the first three quarterly periods of each fiscal year, for itself and its Subsidiaries, consolidated unaudited balance sheets as at the close of each such period and consolidated unaudited profit and loss statements and a consolidated unaudited statement of cash flows for the period from the beginning of such fiscal year to the end of such quarter, all certified by a Financial Officer.
(ax)Compliance Certificate. Together with each delivery of financial statements pursuant to Sections 5.1(a) and 5.1(b), a duly executed and completed Compliance Certificate signed by a Financial Officer, including, in each case, (i) a statement that no Default or Event of Default exists, or if any Default or Event of Default exists, stating the nature and status thereof and (ii) a calculation of the Fixed Charge Coverage Ratio for each period for which such Compliance Certificate relates.
(ay)Promptly and in any event within 30 Business Days after the Parent Borrower knows that any Reportable Event has occurred with respect to any Pension Plan (or such longer period as is acceptable to the Administrative Agent), a statement, signed by a Financial Officer of the Parent Borrower, describing said Reportable Event and the action which the Parent Borrower proposes to take with respect thereto.
(az)Promptly and in any event within 15 Business Days after receipt by the Parent Borrower (or such longer period as is acceptable to the Administrative Agent), a copy of (a) any written notice or claim to the effect that the Parent Borrower or any of its Subsidiaries is or may be liable to any Person as a result of the Release by the Parent Borrower, any of its Subsidiaries, or any other Person of any Hazardous Materials into the Environment, and (b) any written notice alleging any violation of any Environmental Law by the Parent Borrower or any of its Subsidiaries, which, in either case, could reasonably be expected to have a Material Adverse Effect.
(ba)Promptly after the sending or filing thereof, copies of all reports, proxy statements and financial statements that the Parent Borrower or any of its Subsidiaries sends to or files with any of their respective securities holders (other than the Parent Borrower or another Subsidiary) or any securities exchange or the SEC pertaining to the Parent Borrower or any of its Subsidiaries as the issuer of securities.
(bb)Such other information (including non-financial information) as any Agent or any Lender (through the Administrative Agent) may from time to time reasonably request.
(bc)Within 45 days after the end of each of the first two months of each of its fiscal quarters, to the Administrative Agent for distribution to the Lenders with access to the private- side agency intralinks or similar site, a year-over-year year to date profit and loss bridge and free cash flow schedule (which need not be prepared in accordance with GAAP).
Notwithstanding the foregoing clauses (a) and (b) above, as to any information contained in materials furnished pursuant to clause (f) above, the Parent Borrower shall not be separately required to furnish such information under the clauses (a) or (b) above, provided the foregoing shall not be in derogation of the obligation of the Parent Borrower to furnish the information and materials described in the above clauses (a) and (b) above at the times specified therein. Materials required to be delivered pursuant to any of clauses (a) through (f), inclusive, above (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and shall be deemed to have been delivered on the date (i) on which the Parent Borrower posts such documents, or provides a link thereto on the Parent Borrower’s website on the Internet, and gives written notice thereof to the Administrative Agent; or (ii) on which such documents are posted on the Parent Borrower’s behalf on an Internet or intranet website, if any, to which the Administrative Agent has access (whether a commercial, third-party website or whether sponsored by the Administrative Agent), and the Administrative Agent shall have received written notice of such posting.
5.2Use of Proceeds.
(bd)The proceeds of the Loans and the Letters of Credit will be used only to finance the Transactions, to finance the ongoing working capital requirements of the Borrowers and their respective Subsidiaries and for other general corporate purposes. The Parent Borrower will not, nor will it permit any Subsidiary to, use any of the proceeds of the Loans to purchase or carry any Margin Stock in any way in violation of Regulation T, U or X.
(be)The Borrowers will not request any Loan or Letter of Credit, and the Borrowers shall not use, and shall ensure that their respective Subsidiaries and its or their respective directors, officers, employees and agents shall not use, the proceeds of any Loan or Letter of Credit directly or indirectly (A) in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any Person in violation in any material respect of any Anti-Corruption Laws, (B) for the purpose of funding, financing or facilitating any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, in violation of Sanctions, or (C) in any manner that would result in the violation of any Sanctions by any Lender or Agent party hereto. Each Borrower will take actions designed to ensure compliance by the Borrowers, their respective Subsidiaries and their respective directors, officers, employees and agents (in their respective capacities as such) with Anti-Corruption Laws and Sanctions in all material respects. The foregoing clauses (B) and (C) of this Section 5.2(b) will not apply to any party hereto to which the Blocking Regulation applies, if and to the extent that such covenants are or would be unenforceable by or in respect of that party pursuant to, or would otherwise result in a breach and/or violation of, (A) any provision of the Blocking Regulation (or any law or regulation implementing the Blocking Regulation in any member state of the European Union) or (B) any similar blocking or anti-boycott law in the United Kingdom or (C) section 7 of the German Foreign Trade Ordinance (Außenwirtschaftsverordnung). Notwithstanding the foregoing, the representations given in this Section 5.2(b) shall not be made by nor apply to any Person that qualifies as a corporation that is registered or incorporated under the laws of Canada or any province or territory thereof and that carries on business in whole or in part in Canada within the meaning of Section 2 of the Foreign Extraterritorial Measures (United States) Order, 1992 passed under the Foreign Extraterritorial Measures Act (Canada) insofar as such representations would result in a violation of or conflict with the Foreign Extraterritorial Measures Act (Canada) or any similar law.
5.3Notice of Default; Notice of Material Adverse Effect. The Parent Borrower will, and will cause each Borrower and Subsidiary to, after any senior officer of any Credit Party has knowledge thereof, give prompt notice in writing to the Administrative Agent of the occurrence of (i) any Default or Event of Default or (ii) of any other development, financial or otherwise, which could reasonably be expected to have a Material Adverse Effect.
5.4Conduct of Business. Neither the Parent Borrower nor any of its Subsidiaries shall enter into any material business, either directly or through any Subsidiary, except for those businesses (a) in which the Parent Borrower and its Subsidiaries are engaged on the date of this Agreement or (b) that are reasonably related, incidental, ancillary, complementary (including related, complementary, synergistic or ancillary technologies) or similar thereto, or a reasonable extension, development or expansion thereof. The Parent Borrower will, and will cause each Subsidiary to do all things necessary to remain duly incorporated or organized, validly existing and (to the extent such concept applies to such entity) in good standing as a corporation, partnership, limited liability company, unlimited liability company or other organizational form in its jurisdiction of incorporation or organization, as the case may be (unless, with respect to Subsidiaries other than Borrowers, the failure to do so would not reasonably be expected to have a Material Adverse Effect), and maintain all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, unless the failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.5Taxes. The Parent Borrower will, and will cause each Subsidiary to, timely file complete and correct United States federal and applicable foreign, state, provincial, territorial and local tax returns required by law and pay when due all Taxes, assessments and governmental charges and levies upon it or its income, profits or Property, except (i) those that are being contested in good faith by appropriate proceedings and with respect to which adequate reserves have been set aside in accordance with GAAP or
(ii) where the failure to do so would not reasonably be expected to have a Material Adverse Effect. No Credit Party will be member of a tax group for VAT and/or corporate income tax purposes other than such a group made up solely of Credit Parties. Each Credit Party will be resident for Tax purposes solely in its jurisdiction of incorporation.
5.6Insurance. The Parent Borrower will, and will cause each Subsidiary to, maintain with financially sound and reputable insurance companies insurance on all their Property in such amounts (with such customary deductibles, exclusions and self-insurance) and covering such risks as is consistent with sound business practice.
5.7Compliance with Laws. The Parent Borrower will, and will cause each Subsidiary to, comply with all Laws, except where the failure to do so would not reasonably be expected to have a Material Adverse Effect.
5.8Properties; Inspection. The Parent Borrower will, and will cause each Subsidiary to, do all things reasonably necessary to maintain, preserve, protect and keep its material Property in good repair, working order and condition, as applicable, and make all necessary and proper repairs, renewals, and replacements to the extent the Parent Borrower reasonably deems consistent with sound business practice. The Parent Borrower will, and will cause each Subsidiary to, permit representatives of the Administrative Agent (and through the Administrative Agent, the Lenders), to reasonably inspect any of the Property of the Parent Borrower and each Subsidiary, the financial or accounting records of the Parent Borrower and each Subsidiary and other documents of the Parent Borrower and each Subsidiary, in each case only to the extent any of the foregoing is reasonably related to the credit evaluation by the Administrative Agent and the Lenders under this Agreement, to examine and make copies of such records and documents of the Parent Borrower and each Subsidiary, and to discuss the affairs, finances and accounts of the Parent Borrower and each Subsidiary with, and to be advised as to the same by, their respective officers upon reasonable prior notice at such reasonable times and intervals as the Administrative Agent may designate; provided that (x) other than after the occurrence and during the continuance of an Event of Default, no more than one such inspection shall be conducted in any fiscal year and (y) only after the occurrence and during the continuance of an Event of Default shall such inspections be at the Parent Borrower’s expense; provided further that all such inspection rights will be limited to the extent necessary for the Parent Borrower and its Subsidiaries to comply with contractual confidentiality obligations not entered into by the Parent Borrower or any of its Subsidiaries for the purpose of avoiding obligations under this Section 5.8. The Administrative Agent and the Lenders agree to use reasonable efforts to coordinate and manage the exercise of their rights under this Section 5.8 so as to minimize the disruption to the business of the Parent Borrower and its Subsidiaries resulting therefrom.
5.9Collateral Matters; Further Assurances, Etc.
(bf)On and after the Closing Date the Parent Borrower will, and will, subject in the case of the US Credit Parties to the Domestic Collateral and Guarantee Requirement, the Canadian Credit Parties to the Canadian Collateral and Guarantee Requirement and the European Credit Parties to the the Agreed Security Principles, cause each Subsidiary that is a Guarantor
(including any Wholly Owned Subsidiaries required to enter into the Guaranty pursuant to Section 2.18), to execute any and all further documents, financing statements, agreements and instruments, and take all such further actions (including the filing and recording of financing statements), which may be required under any applicable law, or which the Collateral Agent may reasonably request, to effectuate the transactions contemplated by the Credit Documents or to grant, preserve, protect or perfect the Liens created or intended to be created by the Collateral Documents or the validity or priority of any such Lien, all at the expense of the Parent Borrower.
(bg)On and after the Closing Date, with respect to any property (other than Excluded Assets and Foreign Excluded Assets) of the Parent Borrower or any Guarantors as to which the Collateral Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Agent such amendments to the Collateral Documents or such other documents as the Collateral Agent deems reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a security interest in such property and (ii) take all actions reasonably necessary or advisable to grant to the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest (subject to Liens permitted under Section 6.16) in such property, including the filing of Uniform Commercial Code and PPSA financing statements in such jurisdictions as may be required by the Collateral Documents or by law or as may be reasonably requested by the Collateral Agent.
(bh)On and after the Closing Date, with respect to any fee interest in any real property (together with improvements thereof) having a fair market value in the reasonable judgment of the Parent Borrower of at least $10,000,000, except to the extent constituting Excluded Assets or Foreign Excluded Assets, within 90 days after the Closing Date or, if later, the acquisition thereof or joinder of the applicable Guarantor owning such property (or in each case such later date as agreed by the Collateral Agent), (i) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Lenders, covering such real property, (ii) if reasonably requested by the Collateral Agent, provide the Lenders with (x) title and extended coverage insurance covering such real property in an amount equal to the fair market value referred to above (but in no event less that the purchase price of such real property), or such other amount as shall be reasonably specified by the Collateral Agent acting at the direction of the Administrative Agent), which title insurance shall contain such endorsements and affirmative coverage as may be reasonably requested by the Collateral Agent and (y) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent, (iii) if requested by the Collateral Agent, a current ALTA survey of such real property, together with a surveyor’s certificate, (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions of local counsel and counsel in the jurisdiction where the relevant Guarantor is organized relating to such matters as may be reasonably requested by the Collateral Agent, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent, and (v) if requested by the Collateral Agent, provide a Phase I environmental assessment report for such property that is reasonably acceptable to the Collateral Agent in form and substance.
(bi)On and after the Closing Date, with respect to any Subsidiary created or acquired by the Parent Borrower or any Guarantor, within 45 days of such Person becoming a Subsidiary (or such later date as agreed by the Collateral Agent) (i) the Parent Borrower shall take all actions (if any) to cause such Subsidiary (other than an Excluded Subsidiary) to comply with the Collateral and Guarantee Requirements, (ii) the Parent Borrower shall, or shall cause the applicable Guarantor to, execute and deliver to the Collateral Agent such amendments to the Collateral Documents as the Collateral Agent deems reasonably necessary or advisable to grant to
the Collateral Agent, for the benefit of the Lenders, a perfected first priority security interest (subject to Liens permitted under Section 6.16) in the Capital Stock of such new Subsidiary that is owned by the Parent Borrower or any Guarantor except to the extent such Capital Stock constitutes an Excluded Asset or Foreign Excluded Assets, and (iii) except to the extent constituting Excluded Assets or Foreign Excluded Assets, if such Capital Stock is certificated, deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Parent Borrower or such Guarantor, as applicable.
(bj)Notwithstanding anything to the contrary herein or in any other Credit Documents, if the Paderborn Property constitutes (or is required to constitute) collateral securing the Superpriority Term Loans, the Paderborn Property shall cease to be a Foreign Excluded Asset and shall be Collateral upon written notice from the Collateral Agent, and such real property shall be subject to Section 5.9(c) above as if such real property had been acquired on the date of such notification.
(bk)MIRE Events. Each of the parties hereto acknowledges and agrees that, if there are any Mortgages, any increase, extension or renewal of any of the Commitments or Loans (including the provision of any incremental credit facilities hereunder, but excluding any continuation or conversion of Advances) may at the discretion of the Designated Lender be subject to (and conditioned upon): (1) the prior delivery of all flood hazard determination certifications, acknowledgements and evidence of flood insurance and other flood-related documentation with respect to such Mortgages as required by Flood Insurance Regulations and as otherwise reasonably required by the Administrative Agent, the Collateral Agent or Designated Lender and (2) the Administrative Agent having received written confirmation from the Designated Lender (if any), flood insurance due diligence and flood insurance compliance has been completed thereby (such written confirmation not to be unreasonably withheld, conditioned or delayed).
(bl)Flood Insurance. With respect to each Mortgage that is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a “special flood hazard area” with respect to which flood insurance has been made available under Flood Insurance Regulations, the applicable Credit Party (A) has obtained and will maintain, with financially sound and reputable insurance companies (except to the extent that any insurance company insuring the Mortgage of the Credit Party ceases to be financially sound and reputable after the Closing Date, in which case, the Parent Borrower shall promptly replace such insurance company with a financially sound and reputable insurance company), such flood insurance in such reasonable total amount as the Administrative Agent, the Collateral Agent and the Designated Lender may from time to time reasonably require, and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and
(B) promptly upon request of the Administrative Agent or the Designated Lender, will deliver to the Administrative Agent, the Collateral Agent or such Designated Lender, as applicable, evidence of such compliance in form and substance reasonably acceptable to the Administrative Agent, the Collateral Agent or such Designated Lender, including, without limitation, evidence of annual renewals of such insurance.
(bm)Pledges of Mortgaged Property. Notwithstanding the foregoing or anything herein to the contrary, the Collateral Agent shall not enter into any Mortgage in respect of any real property located in the United States acquired by the Parent Borrower or any other Credit Party after the Closing Date until (1) the date that occurs 30 days after the Administrative Agent has delivered to the Designated Lender (which may be delivered electronically) the following
documents in respect of such real property: (i) a completed flood hazard determination from a third party vendor; (x) if such real property is located in a “special flood hazard area”, (I) a notification to the Parent Borrower (or applicable Credit Party) of that fact and (if applicable) notification to the Parent Borrower (or applicable Credit Party) that flood insurance coverage is not available and (II) evidence of the receipt by the Parent Borrower (or applicable Credit Party) of such notice; and (y) if such notice is required to be provided to the Parent Borrower (or applicable Credit Party) and flood insurance is available in the community in which such real property is located, evidence of required flood insurance and (2) the Administrative Agent shall have received written confirmation from the Designated Lender that flood insurance due diligence and flood insurance compliance has been completed by the Designated Lender (such written confirmation not to be unreasonably conditioned, withheld or delayed).
(bn)Notwithstanding the foregoing or anything to the contrary herein or in any other Credit Document, no Credit Party shall be required to take any other actions other than those set forth in the definitions of Domestic Collateral and Guarantee Requirement, Canadian Collateral and Guarantee Requirement and the Agreed Security Principles.
5.10Maintenance of Ratings. The Parent Borrower will use commercially reasonable efforts to cause to be maintained at all times (a)(i) a corporate family rating, in the case of Moody’s or (ii) an issuer credit rating, in the case of S&P, for the Parent Borrower and (b) credit ratings for the Revolving Credit Facility from Moody’s and S&P, but in the case of clauses (a) and (b), for the avoidance of doubt, not any specific rating.
5.11Guaranties.
(bo)[Reserved].
(bp)On and after the Closing Date, within 45 days (or such longer period of time contemplated by the Collateral and Guarantee Requirements or as the Administrative Agent shall agree) after delivery (or date of required delivery) of each set of applicable financial statements pursuant to 5.1(a) and (b) and with respect to any Person that becomes a Subsidiary (other than an Excluded Subsidiary) after the Closing Date, within 45 days of such Person becoming a Subsidiary (other than an Excluded Subsidiary), the Parent Borrower shall take all actions (if any) required to be taken to satisfy the Collateral and Guarantee Requirements with respect to (i) each Wholly Owned US Subsidiary (other than an Excluded Subsidiary) and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded Indebtedness of (A) any Credit Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000), the assets of each such Subsidiary and with respect to any Equity Interest in or Indebtedness of such Subsidiary owned by or on behalf of any Credit Party such that (i) all Wholly Owned US Subsidiaries (other than Excluded Subsidiaries) and (ii) each Subsidiary (other than an Excluded Subsidiary) organized in a Specified Foreign Jurisdiction that guarantees funded Indebtedness of (A) any Credit Party or (B) any External Subsidiary (in the case of this clause (B), in excess of $10,000,000) are Guarantors as of such date.
(bq)In connection with the delivery of any such Guaranties and Collateral Documents and the satisfaction of the Collateral and Guarantee Requirements, the Parent Borrower shall provide such other documentation to the Administrative Agent and Collateral Agent, including, without limitation, one or more opinions of counsel reasonably satisfactory to the Administrative Agent and Collateral Agent, corporate documents and resolutions, which in the reasonable opinion of the Administrative Agent and Collateral Agent is necessary or advisable in connection therewith. For the avoidance of doubt, notwithstanding the above, for so long as a Subsidiary of
the Parent Borrower guarantees the 2025 Notes, New 2L Notes, Superpriority Term Loans, Existing 2023 Term Loans and/or the Extended Term Loans or any other Indebtedness for borrowed money (or in each case any refinancing, renewal or replacement thereof), such Subsidiary will be required to guaranty the Obligations.
5.12Borrowing Base Determination.
(br)(i) Not later than (x) January 6, 2023 with respect to the fiscal month ending November 30, 2022 and (y) twenty days after the end of each fiscal month commencing with the fiscal month ended December 31, 2022, Parent Borrower shall deliver a consolidating Borrowing Base Certificate with respect to the Global Borrowing Base and setting forth, on an individual basis, the US Borrowing Base, the Canadian Borrowing Base, the Total Shared Borrowing Base, the Belgian Borrowing Base, the Dutch Borrowing Base, the Italian Borrowing Base, the Swedish Borrowing Base, the Spanish Borrowing Base, the Polish Borrowing Base, the French Borrowing Base, each German Borrowing Base and the UK Borrowing Base, together with, in each case, to the extent reasonably available, such supporting information as the Administrative Agent may from time to time reasonably request in connection therewith as of the end of such fiscal month executed by an Authorized Officer of such Parent Borrower having signature power for Parent Borrower;
(A)During any Global Liquidity Event Period, Parent Borrower shall deliver, not later than three (3) Business Days after the end the last day of each week, additional Borrowing Base Certificates as described in clause (A) above and, to the extent reasonably available, supporting information in connection therewith as of the end of such period (containing available updated figures for Eligible Receivables but not, unless otherwise available, Eligible Inventory) executed by an Authorized Officer of such Borrower;
(bs)Parent Borrower shall promptly notify the Administrative Agent in writing in the event that at any time Parent Borrower receives or otherwise gains knowledge that (i) any applicable Borrowing Base is less than 90% of the applicable Borrowing Base reflected in the most recent Borrowing Base Certificate delivered pursuant to clause (i) above, (ii) the applicable outstanding Revolving Credit Outstandings exceed the applicable Borrowing Base as a result of a decrease therein, in which case such notice shall also include the amount of such excess or (iii) any Global Liquidity Event Period has begun.
(bt)To the extent that the aggregate amount of Loans and Letters of Credit incurred in reliance on the US Borrowing Base or the UK Borrowing Base exceeds the aggregate amount of Eligible Receivables and Eligible Inventory included in such Borrowing Base, the Parent Borrower shall either (a) on each Business Day, report in form and substance reasonably satisfactory to the Administrative Agent cash balances with respect to Qualified Cash included in such Borrowing Base or (b) hold such Qualified Cash included in such Borrowing Base in a deposit account at the Administrative Agent that is subject to an effective Deposit Account Control Agreement (it being understood that the applicable Credit Party shall be permitted to withdraw amounts in such account after providing a request to the Administrative Agent so long as, on a Pro Forma Basis for such withdrawal, no Global Liquidity Event Period has occurred and is continuing).
(bu)During the Specified Availability Period, the Parent Borrower shall, on each Business Day, report in form and substance reasonably satisfactory to the Administrative Agent
cash and Cash Equivalent balances with respect to cash and Cash Equivalents included in Specified Availability.
5.13Field Examinations; Collateral Appraisals.
(bv)Each Borrower shall conduct, or shall cause to be conducted, at its expense and upon request of the Administrative Agent, and present to the Administrative Agent for approval, such appraisals, investigations and reviews as the Administrative Agent shall reasonably request for the purpose of determining the applicable Borrowing Base, all from an appraiser reasonably acceptable to the Administrative Agent and upon reasonable prior notice and at such times during normal business hours; provided that unless (i) an Event of Default has occurred and is continuing or (ii) any Global Liquidity Event Period has occurred, not more than one field examination and not more than one Collateral appraisal shall be required in each calendar year; provided, however, if on any date of determination (x) solely during the Specified Availability Period, the greater of Excess Availability and Specified Availability and (y) thereafter, Excess Availability is less than the greater of (x) 15% of the Line Cap and (y) $35,000,000 for 5 consecutive business days, one additional field examination and one additional collateral appraisal will be permitted within the next year. Each Borrower shall furnish to the Administrative Agent, for further distribution to the Lenders, any reasonably available information that the Administrative Agent may reasonably request regarding the determination and calculation of the applicable Borrowing Base including correct and complete copies of any invoices, underlying agreements, instruments or other documents and the identity of all Account Debtors in respect of Accounts referred to therein.
(bw)During any Global Liquidity Event Period, the Administrative Agent may, at the Parent Borrower’s sole cost and expense, make test verifications of the Accounts and physical verifications of the inventory in any manner and through any medium that the Administrative Agent reasonably considers advisable, and the applicable Borrower shall furnish all such reasonable assistance and reasonably available information as the Administrative Agent may reasonably require in connection therewith. At any time and from time to time, upon the Administrative Agent’s reasonable request and at the expense of the Parent Borrower, such Borrower shall, or shall use commercially reasonable efforts to cause independent public accountants or others satisfactory to the Administrative Agent to, furnish to the Administrative Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the Accounts; provided, however, that unless an Event of Default pursuant to Section 8.1(a), (f), or
(g) shall be continuing, (x) the Administrative Agent shall request no more than two such reports from each Borrower during any calendar year and (y) such test verifications shall be conducted in coordination with the applicable Borrower.
5.14Additional Borrowers.
(bx)The Parent Borrower may designate any Wholly Owned Subsidiary as a Borrower under this Agreement with the consent of all the Lenders (each, an “Additional Borrower”); provided that, with respect to any such Subsidiary which is not a US Subsidiary, such Wholly Owned Subsidiary shall be organized under the laws of France, Germany, Belgium, the European part of the Kingdom of the Netherlands, Spain, England and Wales, Italy, Poland, Sweden or Canada. Such Wholly Owned Subsidiary shall become an Additional Borrower and a party to this Agreement, and all references to the “Borrowers” (and any specific sub-class of Borrowers organized in the same jurisdiction as the Additional Borrower) shall also include such Additional Borrower, upon (a) the receipt by the Administrative Agent of documentation consistent in scope (but applicable to such Additional Borrower) with the documentation set forth
in Section 3.1(b), (i), (l), (p) and (r) and (b) the Administrative Agent shall have received at least 15 Business Days’ prior notice of such requested Additional Borrower, and shall have received, at least three Business Days prior to the date such Additional Borrower becomes a party hereto, all documentation and other information about the Additional Borrower reasonably requested by the Administrative Agent or any Lender in writing at least 10 Business Days prior to such date and that the Administrative Agent or any Lender reasonably determines is required by United States bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act and the Beneficial Ownership Regulation. Notwithstanding anything to the contrary in Section 10.5 or in any Credit Document, the Credit Documents may be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower (and without the consent of any other parties thereto) to effect the provisions of or be consistent with this Section 5.14 (including to make conforming changes related to the addition of any such Additional Borrower).
(by)For the avoidance of doubt, the Spanish Borrower shall become a Borrower under this Agreement pursuant to the Spanish Joinder Agreement on the Closing Date, which shall not be subject to the foregoing requirements of Section 5.14(a).
5.15Control Accounts; Approved Deposit Accounts.
(bz)Each Credit Party (other than the Swiss Borrower) shall (i) deposit in an Approved Deposit Account all cash it receives, (ii) not establish or maintain any Securities Account that is not a Control Account and (iii) not establish or maintain any Deposit Account other than with a Deposit Account Bank subject to an effective Deposit Account Control Agreement (or other applicable agreement under applicable foreign local law); provided, however, that notwithstanding the foregoing, each Credit Party may (i) maintain payroll, disbursement and other fiduciary accounts (and each Credit Party shall use commercially reasonable efforts to ensure that such accounts shall only receive deposits in amounts reasonably expected to be required to satisfy the payroll, disbursement or other fiduciary obligations to be made from such accounts), (ii) maintain other accounts as long as the aggregate balance for all such Credit Parties in all such other accounts does not exceed the Dollar Equivalent of
$2,500,000 at any time, (iii) maintain other trust, escrow, customs and fiduciary accounts (and each Credit Party shall use commercially reasonable efforts to ensure that such accounts shall only receive deposits in amounts reasonably expected to be required to satisfy the trust, escrow, customs or fiduciary obligations to be made from such accounts), (iv) maintain cash collateral accounts solely holding cash collateral upon which Permitted Liens exist and (v) maintain tax accounts, including, without limitation, sales tax accounts (and each Credit Party shall use commercially reasonable efforts to ensure that such accounts shall only receive deposits in amounts reasonably expected to be required to satisfy the tax obligations to be made from such accounts) (each of the accounts referred to in clauses (i) to (v), an “Excluded Account”); provided further that (A) each Credit Party shall use commercially reasonable efforts to ensure that such Excluded Accounts receive no deposits from Account Debtors in respect of an Account and (B) each Credit Party shall promptly after becoming aware of any deposit in such Excluded Accounts from Account Debtors in respect of an Account cause such deposit to transferred to an Approved Deposit Account; provided further, however, that (1) with respect to any Deposit Account or Securities Account, other than an Excluded Account, maintained on the Closing Date, each of the Credit Parties shall deliver, to the extent not delivered to the Administrative Agent on the Closing Date (after the use of commercially reasonable efforts), each Deposit Account Control Agreement (or other applicable agreement under applicable foreign local law) and each Securities Account Control Agreement on or prior to the date that is 90 days after the Closing Date (or such later date as the Administrative Agent may agree), (2) with respect to any Deposit
Account or Securities Account, other than an Excluded Account, established or acquired after the Closing Date, each applicable Credit Party shall deliver to the Applicable Agent and the Administrative Agent a Deposit Account Control Agreement (or other applicable agreement under applicable foreign local law) or a Securities Account Control Agreement, as applicable, within 45 days after establishing or acquiring such Deposit Account or Securities Account (or such later date as the Administrative Agent may agree) and (3) for the avoidance of doubt, no Collection Account shall be an Excluded Account.
(ca)
(i)On or prior to the date that is 120 days after the Closing Date (or such later date as the Administrative Agent may agree) (the “Segregation and DACA Deadline Date”), each European Borrower shall (A) to the extent its bank accounts are not segregated to receive the proceeds of Accounts only, open new bank accounts in order to, segregate payroll and other payables activities from accounts used for the collection of Accounts and shall procure that all amounts standing to the credit of each such Borrower’s existing deposit accounts (representing amounts other than Proceeds of Accounts) shall be immediately transferred to such new bank accounts such that the existing deposit accounts (being Collection Accounts) contain the Proceeds of Accounts only; and (B) deliver Deposit Account Control Agreements (or other applicable agreement under applicable foreign local law) in respect of each such Collection Account.
(ii)To the extent that a European Borrower does not satisfy the requirements of Section 5.15(b)(i) above to the satisfaction of the Administrative Agent, each relevant European Borrower shall, within 60 days of the Segregation and DACA Deadline Date, open a Collection Account or Collection Accounts with the Administrative Agent or an Affiliate of the Administrative Agent (or such other account bank that may be approved by the Administrative Agent) and shall, on the opening of such Collection Accounts
(A) instruct all of its Account Debtors to direct payments of the Proceeds of their Accounts into such new Collection Account(s) with the Administrative Agent (or relevant Affiliate); (B) until such Proceeds of Accounts have been redirected to such Collection Accounts, the applicable European Borrower shall cause all such amounts on deposit in any other Deposit Account to be transferred to the new Collection Account within three (3) Business Days following receipt), (C) enter into Liens and charges over the relevant Collection Account(s) in form and substance reasonably satisfactory to the Applicable Collateral Agent and the Administrative Agent and (D) deliver to the Applicable Collateral Agent and the Administrative Agent a Deposit Account Control Agreement (or other applicable agreement under applicable foreign local law) in respect of such Collection Accounts; and (E) take all other actions as the Applicable Collateral Agent (with respect to the European Collateral Agent, acting at the instructions of the Administrative Agent) and/or the Administrative Agent shall deem necessary or advisable in order to create or perfect its Liens over such Collection Account(s).
(cb)Without prejudice to Section 5.15(b) in respect of the European Borrowers, each Credit Party shall, promptly upon the applicable Deposit Account becoming subject to a Deposit Account Control Agreement, (i) instruct each Account Debtor or other Person obligated to make a payment to any of them under any Account or General Intangible to make payment, or to continue to make payment, to an Approved Deposit Account and (ii) deposit in an Approved Deposit Account (or, to the extent permitted pursuant to clause (a) above, an Excluded Account) within three (3) Business Days following receipt all Proceeds of such Accounts and General
Intangibles received by Parent Borrower, the Borrowers or any of their Subsidiaries from any other Person.
(cc)[reserved].
(cd)In the event (i) any Credit Party or any Deposit Account Bank shall, after the date hereof, terminate an agreement with respect to the maintenance of an Approved Deposit Account for any reason or (ii) any Agent shall demand such termination as a result of the failure of a Deposit Account Bank to comply with the terms of the applicable Deposit Account Control Agreement, each Credit Party shall notify all of its respective Account Debtors and other obligors that were making payments to such terminated Approved Deposit Account to make all future payments to another Approved Deposit Account.
(ce)In the event (i) any Credit Party or any Approved Securities Intermediary shall, after the date hereof, terminate an agreement with respect to the maintenance of a Control Account for any reason or (ii) any Agent shall demand such termination as a result of the failure of an Approved Securities Intermediary to comply with the terms of the applicable Securities Account Control Agreement, each Credit Party shall notify all of its obligors that were making payments to such terminated Control Account to make all future payments to another Control Account.
(cf)The Administrative Agent may establish one or more Cash Collateral Accounts with such depositaries and Securities Intermediaries as it in its sole discretion shall determine; provided, however, that any Cash Collateral Account established with respect to the assets of any European Credit Party shall be subject to the European Limitations. Each Credit Party agrees that each such Cash Collateral Account shall meet the requirements set forth in the definition of “Cash Collateral Account.” During any Global Liquidity Event Period, the Administrative Agent may (or at the request of the Required Lenders shall) cause all amounts on deposit (net of such minimum balance, if any, required by the Deposit Account Banks at which each Approved Deposit Account is maintained (not to exceed $10,000 per Approved Deposit Account and
$100,000 in the aggregate); provided that no Agent shall be obligated to monitor any such minimum balance requirement and, for the avoidance of doubt, shall be entitled to request a sweep of all available funds) in any Approved Deposit Account and/or any Control Account to be transferred to a Cash Collateral Account at the end of each Business Day. If the Administrative Agent exercises such right, all amounts on deposit (net of such minimum balance, if any, required by the Deposit Account Banks at which each Approved Deposit Account is maintained (not to exceed $10,000 per Approved Deposit Account and $100,000 in the aggregate); provided that no Agent shall be obligated to monitor any such minimum balance requirement and, for the avoidance of doubt, shall be entitled to request a sweep of all available funds) in the Cash Collateral Account be applied on a daily basis by the Administrative Agent to reduce amounts outstanding under the applicable Revolving Credit Facility; provided that any amounts in a Cash Collateral Account established with respect to the assets of any European Credit Party shall be subject to the European Limitations.
(cg)Without limiting the foregoing, funds on deposit in any Cash Collateral Account may be invested (but the Administrative Agent shall be under no obligation to make any such investment) in Cash Equivalents at the direction of the Administrative Agent and, except during the continuance of an Event of Default, the Administrative Agent agrees with the Credit Parties to issue Entitlement Orders for such investments in Cash Equivalents as requested by the applicable Borrower; provided, however, that the Administrative Agent shall not have any responsibility for, or bear any risk of loss of, any such investment or income thereon. None of Parent Borrower or
any other US Credit Party or Person claiming on behalf of or through Parent Borrower, the Borrowers or any other Credit Party shall have any right to demand payment of any funds held in any Cash Collateral Account at any time prior to the earlier of (A) termination of all outstanding applicable Letters of Credit and the payment in full of all then outstanding and payable monetary Obligations and (B) the end of the applicable Global Liquidity Event Period. The Administrative Agent shall apply all funds on deposit in a Cash Collateral Account as provided in Section 2.15(h).
5.16Landlord Waivers and Bailee’s Letters.
(ch)To the extent not delivered on or prior to the Closing Date, each Credit Party shall use commercially reasonable efforts to deliver, within 90 days after the Closing Date (or such later date as shall be acceptable to the Administrative Agent in its sole discretion), Landlord Personal Property Collateral Access Agreements and Bailee’s Letters with respect to each premises of a third party at which any Collateral with a value in excess of $2,000,000 is located as of the Closing Date; provided that if such documentation is not obtained with respect to any premises on which Collateral included in a Borrowing Base is located in such time period, the Administrative Agent shall be permitted to impose a Reserve against such Collateral in an amount equal to three (3) months’ rent or operating expenses, as applicable, for such premises.
(ci)With respect to any premises of a third party at which any Collateral with a value in excess of $2,000,000 is located that was not used or leased by any Credit Party on the Closing Date, each Credit Party shall use commercially reasonable efforts to deliver, within 90 days after the acquisition of such Leasehold Property or other third party location (or such later date as shall be acceptable to the Administrative Agent in its sole discretion), Landlord Personal Property Collateral Access Agreements and Bailee’s Letters with respect to each such premises; provided that if such documentation is not obtained with respect to any premises on which Collateral included in a Borrowing Base is located, the Administrative Agent shall be permitted to impose a Reserve against such Collateral in an amount equal to three (3) months’ rent or operating expenses, as applicable, for such premises.
5.17Financial Assistance. Each European Credit Party shall, if applicable, comply in all respects with applicable legislation governing financial assistance, including (i) Sections 677 to 683 of the UK Companies Act 2006, (ii) articles 2358 and/or 2474 of the Italian Civil Code, (iii) Article 150 of the Spanish Companies Law (in respect of a Spanish Credit Party incorporated as a Sociedad Anónima) and Article 143 of the Spanish Companies Law (in respect of a Spanish Credit Party incorporated as a Sociedad de Responsabilidad Limitada), (iv) articles 5:152, 6:118 and/or 7:227 of the Belgian Companies and Associations Code, and (v) article L. 225-216 of the French Commercial Code, as applicable.
5.18Compliance with Swiss Non-Bank Rules. Each Swiss Borrower shall be at all times compliant with the Swiss Non-Bank Rules; provided, however, that it shall not be in breach of this covenant if the relevant number of creditors, which are Swiss Non-Qualifying Banks is exceeded solely by reason of a breach by one or more Lenders of a confirmation contained in Section 2.19(s) or a failure by one or more Lenders to comply with their obligations in Section 10.6. For the purposes of this Section, each Swiss Borrower shall assume that the aggregate number of Lenders which are Swiss Non-Qualifying Banks is ten.
5.19Post-Closing Matters. Deliver to Administrative Agent and, as applicable, the Applicable Collateral Agent, in form and substance reasonably satisfactory to the Administrative Agent, the items described on Schedule 5.19 hereof on or before the dates specified with respect to such items on Schedule 5.19 (or, in each case, such later date as may be agreed to by Administrative Agent in its sole
discretion), except (with respect to documents or actions that would have been required to be delivered or taken on the Closing Date but for the proviso to Section 3.1(i)(i)) the extent otherwise agreed by the Administrative Agent and the Collateral Agent pursuant to their authority as set forth in the definitions of “Domestic Collateral and Guarantee Requirement” and “Canadian Collateral and Guarantee Requirement” and the Agreed Security Principles.
5.20[Reserved]. DAC 6. The Parent Borrower shall supply to the Administrative Agent (in sufficient copies for all the Lenders if the Administrative Agent so requests) promptly upon the making of such reporting and to the extent permitted by applicable law and regulation, any reporting made to any governmental or taxation authority by or on behalf of the Parent Borrower or any of its Subsidiaries or by any adviser to such Person in relation to DAC6 or any law or regulation which implements DAC6 and any unique identification number issued by any governmental or taxation authority to which any such report has been made (if available).
5.21Pensions.
(a)Each Credit Party shall ensure that, other than in connection with the Wincor Nixdorf Defined Benefit Pension Scheme, no Credit Party nor any of its Subsidiaries or Affiliates is or has been at any time an employer (for the purposes of sections 38 to 51 of the Pensions Act 2004 (UK)) of an occupational pension scheme which is not a money purchase scheme (both terms as defined in the Pension Schemes Act 1993 (UK)) or “connected” with or an “associate” of (as those terms are used in sections 38 or 43 of the Pensions Act 2004 (UK)) such an employer.
(b)The Parent Borrower shall ensure that all schedules of contributions in relation to pension schemes operated by or maintained for the benefit of the Parent Borrower or any other Credit Party and/or any of their respective employees are complied with in accordance with each of the Parent Borrower’s and the other Credit Parties’ legal and contractual obligations and that no action or omission is taken by the Parent Borrower or any other Credit Party in relation to such a pension scheme which has or is reasonably likely to have a Material Adverse Effect.
(c)The Parent Borrower shall deliver to the Administrative Agent at such times as those reports are prepared in order to comply with the then current statutory or auditing requirements (as applicable either to the trustees of any relevant schemes or to the Parent), actuarial reports in relation to the Wincor Nixdorf Defined Benefit Pension Scheme.
(d)The Parent Borrower shall promptly notify the Administrative Agent of any material change in the rate of contributions to any pension schemes mentioned in paragraph (b) above paid or recommended to be paid (whether by the scheme actuary or otherwise) or required (by Law or otherwise).
(e)The Parent Borrower shall promptly notify the Administrative Agent of any investigation or proposed investigation to be carried out by or under the authority of any regulatory authority relating to any pension scheme which is mentioned in paragraph (b) above. In addition, and without limiting the generality of the foregoing, the Parent Borrower shall promptly notify the Administrative Agent if it or any of the other Credit Parties receives a Financial Support Direction or a Contribution Notice from the Pensions Regulator.
5.22Centre of Main Interests and Establishments. Each European Credit Party shall ensure that the (a) centre of main interests (as that term is used in Article 3(1) of the Insolvency Regulation) of each European Credit Party (other than a UK Credit Party) is situated in its jurisdiction of incorporation and each such European Credit Party has no “establishment” (as that term is used in Article 2(10) of the
Insolvency Regulation) in any other jurisdiction (or in each case any equivalent provision(s) of any applicable successor to the Insolvency Regulation which may apply from time to time); and each UK Credit Party shall ensure that its (b) centre of main interests (as that term is used in Article 3(1) of the Retained Insolvency Regulation) of each UK Credit Party is situated in its jurisdiction of incorporation and each such UK Credit Party has no “establishment” (as that term is used in Article 2(10) of the Retained Insolvency Regulation) in any other jurisdiction (or in each case any equivalent provision(s) of any applicable successor to the Retained Insolvency Regulation or the Insolvency Regulation, respectively, which may apply from time to time).
5.23European Ongoing Perfection Requirements. Each applicable European Credit Party shall enter into such documents, do such acts and take such action as described in, and at the times set out in, Schedule 5.24, in order to perfect the Liens granted to (or otherwise ensure the continued grant of Liens to) the Applicable Collateral Agent pursuant to the Collateral Documents and each Applicable Collateral Agent shall promptly provide evidence of the receipt of such documents and the completion of such acts and actions to the Administrative Agent.
5.24People with Significant Control Regime. Each Credit Party shall promptly (a) notify the Administrative Agent of its receipt of any warning notice or restrictions notice under Schedule 1B of the United Kingdom’s Companies Act 2006 in relation to any company incorporated in the United Kingdom whose shares are the subject of the Collateral Documents (b) provide to the Administrative Agent a copy of any such warning notice or restrictions notice; (c) within the relevant timeframe, respond to or comply with (as applicable) any such notice it receives; and (d) provide the Administrative Agent with a copy of the response sent/received in respect of such notice.
5.25Dutch Tax Covenants
(a)Fiscal Unity for Dutch Tax Purposes. Any fiscal unity (fiscale eenheid) for Dutch tax purposes in which a Credit Party is included, will consist of Credit Parties only, unless with the prior written consent of the Administrative Agent (acting on the instructions of the Required Lenders).
(b)Residency for Dutch Tax Purposes. Each Dutch Credit Party will remain resident for tax purposes in the European part of the Kingdom of the Netherlands only and not create a permanent establishment or other taxable presence outside the European part of the Kingdom of the Netherlands, unless with the prior written consent of the Administrative Agent (acting on the instructions of the Required Lenders).
(c)Allocation of Tax Assets, upon Termination of Fiscal Unity for Dutch Tax Purposes. If, at any time, a Credit Party is a member of a fiscal unity (fiscale eenheid) for Dutch corporate income tax (vennootschapsbelasting) purposes and such fiscal unity is, in respect of that Credit Party, terminated (verbroken) or disrupted (beëindigd) as a result of or in connection with the European Collateral Agent enforcing its rights under any Dutch Collateral Document, such Credit Party shall, at the request of the European Collateral Agent at the request of the Administrative Agent and together with the parent company (moedermaatschappij) or deemed parent company (aangewezen moedermaatschappij) of that fiscal unity, for no consideration and as soon as reasonably practicable, lodge a request with the relevant Governmental Authority to allocate and surrender any tax losses (within the meaning of Article 20 of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)) and any interest expenses available for carry forward (within the meaning of Article 15b(5) of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969) to the Credit Party leaving the fiscal unity, to the extent such tax losses and interest expenses are attributable (toerekenbaar) to that Credit Party (within
the meaning of Article 15af and Article 15ahb of the Dutch Corporate Income Tax Act (Wet op de vennootschapsbelasting 1969)).
SECTION 6. NEGATIVE COVENANTS
Each Credit Party covenants and agrees that, so long as any Revolving Commitment is in effect and until payment in full of all Obligations under the Credit Documents (other than Contingent Obligations) and cancellation, expiration, cash collateralization or backstop (on terms and conditions acceptable to the Administrative Agent), of all Letters of Credit, such Credit Party shall perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.20Fixed Charge Coverage Ratio.
(d)During any period commencing on a date (each a “Commencement Date”) on which (x) solely during the Specified Availability Period, the greater of Excess Availability and Specified Availability and (y) thereafter, Excess Availability is less than the greater of (A) 10% of the Line Cap and (B) $25,000,000, and continuing until any later date on which Excess Availability (or, solely during the Specified Availability Period, the greater of Excess Availability and Specified Availability) shall have exceeded the threshold set forth above for at least 30 consecutive days, Parent Borrower shall not permit the Fixed Charge Coverage Ratio for the Applicable Reference Period in effect at any such time (including, for the avoidance of doubt, the Applicable Reference Period in effect on the applicable Commencement Date) to be less than
1.00 to 1.00.
(e)With respect to any period during which an Acquisition, Investment or a Disposition has occurred or during which Indebtedness has been incurred or assumed, repaid or prepaid (or any other transaction which occurred during the relevant four fiscal quarter period or during the period from the last day of such period to and including the date of determination), for purposes of determining compliance with the financial covenant set forth in this Section 6.1, Excess Availability, Specified Availability, EBITDA and the components of Consolidated Fixed Charges shall be calculated with respect to such period on a Pro Forma Basis.
6.21Merger; Consolidations; Fundamental Changes. The Parent Borrower will not, nor will it permit any Subsidiary to, merge, amalgamate or consolidate with or into any other Person; provided that, so long as no Default or Event of Default shall have occurred and be continuing or would result therefrom, the Parent Borrower may merge, amalgamate or consolidate with any other corporation and each Subsidiary may merge, amalgamate or consolidate with any other Person, provided, further, that
(i) in the case of any such merger or consolidation involving the Parent Borrower, the Parent Borrower is the surviving corporation and continues to be organized in the United States, (ii) in the case of any such merger, amalgamation or consolidation involving any Borrower other than the Parent Borrower, such Borrower is the surviving corporation and continues to be organized in Germany, Canada, Belgium, France, England and Wales, Sweden, Spain, Switzerland, Poland, Italy or the Netherlands, as applicable,
(iii)in the case of any such merger, amalgamation or consolidation involving a Guarantor that does not survive or continue following such merger, amalgamation or consolidation, the surviving or continuing Person assumes all of such Guarantor’s obligations under the Credit Documents and, if not already the Parent Borrower or a Guarantor, becomes a Guarantor pursuant to documentation reasonably satisfactory to the Administrative Agent and such surviving or continuing Person shall be organized in the United States, Germany, Canada, Belgium, France, England and Wales, Sweden, Spain, Poland, Italy or the Netherlands and (iv) any Disposition of a Subsidiary is otherwise permitted under Section 6.3.
The Parent Borrower will not, nor will it permit any Subsidiary to, liquidate or dissolve, provided that a Subsidiary (other than, directly or indirectly, any of the Borrowers) may liquidate or dissolve if the Parent Borrower determines in good faith that such liquidation or dissolution is in the interest of the Parent Borrower and is not materially disadvantageous to the Lenders (it being agreed that any Guarantor that liquidates or dissolves shall transfer all of its assets to the Parent Borrower or another Guarantor (or, in the case of a Guarantor that is a direct or indirect Subsidiary of any of the Borrowers, to such Borrower or another Guarantor that is a direct or indirect Subsidiary of such Borrower), unless otherwise permitted pursuant to Section 6.4).
6.22Sale of Assets. The Parent Borrower will not, nor will it permit any Subsidiary to, Dispose of its Property, to any other Person, except:
(f)Sales and leases of inventory in the ordinary course of business;
(g)Dispositions of assets that are obsolete, damaged, worn out or surplus, in each case in the ordinary course of business;
(h)Dispositions of machinery, equipment or other fixed assets to the extent that (A) such assets are exchanged for credit against the purchase price of similar replacement assets that are purchased within 180 days or (B) the proceeds of such Disposition are applied to the purchase price of replacement assets within 180 days;
(i)Dispositions of cash, Cash Equivalents and the like in the ordinary course of business or in connection with cash management activities;
(j)Discounts, adjustments or forgiveness of accounts receivable and other contract claims in the ordinary course of business or in connection with collection or compromise thereof and sales of accounts receivable in the ordinary course of business and at the request of the account debtor thereon to facilitate the processing and payment thereof;
(k)Dispositions resulting from any taking or condemnation of any property of the Parent Borrower or any Subsidiary by any Governmental Authority or any assets subject to a casualty;
(l)The lease or sublease of real property in the ordinary course of business and not constituting a Sale and Leaseback Transaction;
(m)Licenses and sublicenses of Intellectual Property of the Parent Borrower and its Subsidiaries pursuant to joint marketing agreements with other Persons, in each case in the ordinary course of business; provided that such licensing or sublicensing of Intellectual Property is either (x) on a non-exclusive basis or (y) exclusive only within the granted territory;
(n)Dispositions or the lapse or abandonment (including failure to maintain) in the ordinary course of business of any Intellectual Property of the Parent Borrower or any Subsidiary determined in the reasonable good faith judgment of the respective owner to be no longer useful, necessary, or otherwise material in the operation of the business of the Parent Borrower or any Subsidiary;
(o)Issuance of Capital Stock by a Subsidiary to Parent Borrower or to a Wholly Owned Subsidiary;
(p)Dispositions constituting Investments permitted by Section 6.4, Dispositions constituting Restricted Payments permitted by Section 6.12; and Dispositions constituting mergers, consolidations, or fundamental changes permitted by Section 6.2;
(q)Disposition of any property, interests or assets (i) to any Credit Party and (ii) by any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor;
(r)the Parent Borrower or any Subsidiary may consummate the concurrent purchase and sale or exchange of property useful in a similar business between the Parent Borrower or any of its Subsidiaries and another person to the extent that the assets received by the Parent Borrower or its Subsidiaries are of equivalent or greater fair market value than the assets transferred; provided that to the extent the assets Disposed of pursuant to this clause (m) constituted Collateral, the assets received by the Parent Borrower or its applicable Subsidiary shall also constitute Collateral;
(s)Dispositions of treasury stock of the Parent Borrower to Subsidiaries for use as consideration for acquisitions permitted under Section 6.4;
(t)Creation of Liens permitted by Section 6.5 and Dispositions in connection with such Liens;
(u)Other Dispositions of Property that, together with all other Property of the Parent Borrower and its Subsidiaries previously Disposed of in reliance upon this clause (p) during the twelve-month period ending with the most recent month prior to the month in which any such Disposition occurs for which financial statements of the Parent Borrower have been delivered pursuant to Section 5.1(a) or 5.1(b), did not constitute a Substantial Portion of the Property of the Parent Borrower and its Subsidiaries as of the end of such most recent prior month; provided that, with respect to any Disposition made in reliance on this Section 6.3(p), the consideration paid to the Parent Borrower and its Subsidiaries in such Disposition is 100% cash or Cash Equivalents; and
(v)any surrender or waiver of contract rights or the settlement, release or surrender of any contract, tort or other litigation claims.
Notwithstanding anything in this Section 6.3 to the contrary, (x) no such Dispositions of property may be made (other than pursuant to clause (a) above) if any Event of Default or, in the case of clause (p), Default has occurred and is continuing, (y) no such Dispositions of Equity Interests in any Guarantor may be made to any Person if such Disposition would result in such Guarantor being prohibited by applicable law or regulations or by the terms of any binding contractual arrangement from providing its Guaranty hereunder and under the other Credit Documents unless such Guarantor ceases to be a Subsidiary of the Parent Borrower as a result of such Disposition and (z) if any such Disposition results in a Borrower ceasing to be a Subsidiary, or constitutes a Disposition of ABL Collateral in an amount exceeding the lesser of $25,000,000 and 10% of the Global Borrowing Base, in each case as a condition to such Disposition, (i) an updated Borrowing Base Certificate shall be delivered to the Administrative Agent recalculating the applicable Borrowing Base after giving effect to such Disposition and such updated Borrowing Base Certificate shall demonstrate that, after giving effect to such Disposition, (A) the aggregate principal amount of applicable Tranche A Revolving Credit Outstandings does not exceed the applicable Tranche A Maximum Credit, (B) the Dollar Equivalent of the aggregate principal amount of applicable Tranche B Revolving Credit Outstandings does not exceed the applicable Tranche B Maximum Credit and (C) the Dollar Equivalent of the aggregate principal amount of applicable Tranche C Revolving Credit Outstandings does not exceed the applicable Tranche C Maximum Credit and (ii)
with respect to any such Disposition resulting in a Borrower ceasing to be a Subsidiary, any Credit Extensions made to such Borrower shall have been repaid in full prior to or simultaneously with such Disposition.
6.23Investments and Acquisitions. The Parent Borrower will not, nor will it permit any Subsidiary to, make any Investments or to make any Acquisition of any Person, except:
(w)Investments in cash and Cash Equivalents;
(x)Investments in the Parent Borrower and the Subsidiaries; provided that at no one time shall the aggregate outstanding principal amount of all Investments made by a Credit Party in an External Subsidiary on or after October 20, 2022 in reliance on this clause (b) exceed the sum of (x) $10,000,000 and (y) cash and Cash Equivalents received by a Credit Party on or after October 20, 2022 from one or more External Subsidiaries; provided that the outstanding principal amount of Investments made in reliance on clause (x) shall be (without duplication) reduced by the amount of capital returned (exclusive of items reflected in Consolidated Net Income) to a Credit Party from any such Investments made in reliance on such clause, which reductions may not exceed in aggregate amount the amount originally invested;
(y)Investments in existence on October 20, 2022 and set forth on Schedule 6.4;
(z)other intercompany Investments made by a Credit Party in an External Subsidiary in connection with ordinary course cash management activities;
(aa)to the extent constituting an Investment, the Extended Term Loan Paydown;
(ab)Investments received as part of the settlement of litigation or in satisfaction of extensions of credit to any Person pursuant to the reorganization, bankruptcy or liquidation of such Person or a good faith settlement of debts with such Person;
(ac)Investments received in settlement of amounts due to the Parent Borrower or any Subsidiary effected in the ordinary course of business;
(ad)so long as no Default or Event of Default has occurred and is continuing or would be caused thereby, other Investments made with cash, Cash Equivalents or with assets that do not (and are not required hereunder or under any other Credit Document to) constitute Collateral provided that the aggregate amount of such Investments made (net of any return in cash (including via book entry) of the principal amount thereof) does not exceed $35,000,000;
(ae)Investments by Parent Borrower or any of its Subsidiaries in exchange for consideration consisting only of Capital Stock (other than Disqualified Stock) of Parent Borrower or Net Cash Proceeds of a substantially concurrent sale of Capital Stock (other than Disqualified Stock) of the Parent Borrower;
(af)[reserved];
(ag)[reserved];
(ah)Investments by Parent Borrower or any of its Subsidiaries in payroll, commission, travel and similar advances to cover matters that are reasonably expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
(ai)Receivables owing to the Parent Borrower and extensions of trade credit in the ordinary course of business;
(aj)Investments by Parent Borrower or any of its Subsidiaries in the form of loans or advances to employees, officers or directors of Parent Borrower or any Subsidiary (i) in the ordinary course of business or (ii) in an aggregate amount not to exceed $5,000,000 (including, for the avoidance of doubt, any such Investments existing as of the Closing Date) at any one time outstanding to fund the purchase of Capital Stock of the Parent Borrower by such Persons;
(ak)Investments consisting of licensing, sublicensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business; provided, that such licensing, sublicensing or contribution of Intellectual Property is either (i) on a non-exclusive basis or (ii) exclusive only within the granted territory;
(al)any Investment consisting of cash deposits (including escrowed deposits) pursuant to binding commitments of the Parent Borrower or its Subsidiaries in effect with respect to (i) issuances or refinancings of Indebtedness otherwise permitted hereunder and (ii) Acquisitions permitted hereunder and not yet consummated;
(am)prepaid expenses, negotiable instruments held for collection, lease, utility, workers’ compensation, performance and other similar deposits provided to third parties in the ordinary course of business;
(an)Investments made by Parent Borrower or any of its Subsidiaries in connection with the funding of contributions under any non-qualified retirement plan or similar employee compensation plan in an amount not to exceed the amount of compensation expense recognized by Parent Borrower and its Subsidiaries in connection with such plans; and
(ao)other Investments; provided that the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Investment.
Any Investment in any Person other than a Credit Party that is otherwise permitted by this Section
6.4 may be made through substantially concurrent intermediate Investments in Subsidiaries that are not Credit Parties that are part of the same transaction or series of related transactions and such intermediate Investments shall be disregarded for purposes of determining the outstanding amount of Investments pursuant to any clause set forth above.
The amount of any Investment made other than in the form of cash or Cash Equivalents shall be the fair market value thereof valued at the time of the making thereof, and without giving effect to any subsequent write-downs or write-offs thereof.
For purposes of determining compliance with this Section 6.4, if an Investment meets, in whole or in part, the criteria of one or more of the categories of Investments (or any portion thereof) permitted in this Section 6.4, Parent Borrower may, in its sole discretion, classify or divide (and reclassify and redivide) such Investment (or any portion thereof) in any manner that complies with this Section 6.4 and will be entitled to only include the amount and type of such Investment (or any portion thereof) in one of the above clauses and such Investment will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof).
6.24Liens. The Parent Borrower will not, nor will it permit any Subsidiary to, create, incur, or suffer to exist any Lien on the Property of the Parent Borrower or any of its Subsidiaries, except:
(ap)(i) Permitted Encumbrances, (ii) Liens, if any, created under the Credit Documents (including Liens created under the Collateral Documents securing Obligations) and
(iii) subject to the Intercreditor Agreement, Liens on the Collateral securing obligations in respect of Indebtedness outstanding pursuant to Section 6.7(b), 6.7(c), 6.7(d), 6.7(e), 6.7(f), 6.7(g), 6.7(h);
(aq)Liens existing on the Closing Date and described on Schedule 6.5, but not including any subsequent increase in the principal amount secured thereby;
(ar)[reserved];
(as)[reserved];
(at)[reserved];
(au)Liens in favor of financial institutions against cash pooling arrangements or bank account deposits in foreign bank accounts at such financial institution granted in the ordinary course of business and consistent with standard business practices in such foreign jurisdiction, provided that any such deposit account is not a dedicated cash collateral account and is not subject to restrictions against access by the Parent Borrower or its Subsidiaries;
(av)Liens customary in the banking industry constituting a right of set-off, revocation, refund or chargeback under a customary deposit agreement or under the UCC of a bank or other financial institution (or similar Liens of non-U.S. financial institutions) incurred in the ordinary course of business where deposits are maintained by the Parent Borrower or any Subsidiary;
(aw)[reserved];
(ax)any Lien existing on any property or asset prior to the acquisition thereof by the Parent Borrower or any Subsidiary or existing on any property or asset of any Person that becomes a Subsidiary after the date hereof prior to the time such Person becomes a Subsidiary; provided that (i) such Lien is not created in contemplation of or in connection with such acquisition or such Person becoming a Subsidiary, as the case may be, (ii) such Lien shall not apply to any other property or assets of the Parent Borrower or any Subsidiary and (iii) such Lien shall secure only those obligations which it secures on the date of such acquisition or the date such Person becomes a Subsidiary, as the case may be;
(ay)Liens on assets and property of Foreign Subsidiaries securing Indebtedness and other obligations of such Foreign Subsidiaries in an aggregate outstanding amount not to exceed
$10,000,000 at any one time;
(az)Liens on fixed or capital assets acquired, constructed or improved by the Parent Borrower or any Subsidiary; provided that (i) such security interests secure Indebtedness permitted by Section 6.7(y), (ii) such security interests and the Indebtedness secured thereby are incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement, (iii) the Indebtedness secured thereby does not exceed 100% of the cost of acquiring, constructing or improving such fixed or capital assets and (iv) such security interests shall not apply to any other property or assets of the Parent Borrower or any Subsidiary;
(ba)Liens arising from filing UCC (or PPSA or similar law of any jurisdiction) financing statements or similar public filings, registrations or agreements in foreign jurisdiction regarding leases and consignment or bailee arrangements in the ordinary course of business permitted or not prohibited by any of the Credit Documents and Liens securing liabilities in respect of indemnification obligations thereunder as long as each such Lien only encumbers the assets that are the subject of the related lease (or contained in such leasehold) or consignment or bailee, and other precautionary statements, filings or agreements;
(bb)Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation and exportation of goods in the ordinary course of business;
(bc)Liens on cash or Cash Equivalents permitted by Section 6.4 securing Swap Contracts in the ordinary course of business submitted for clearing in accordance with applicable law;
(bd)Liens in favor of a Credit Party;
(be)Liens in favor of a commodity, brokerage or security intermediary who holds a commodity, brokerage or, as applicable, a security account on behalf of the Parent Borrower or a Subsidiary provided such Lien encumbers only the related account and the property held therein and relates to the security for the activities associated with such account;
(bf)Liens on deposits or other amounts held in escrow to secure contractual payments (contingent or otherwise) payable by the Parent Borrower or its Subsidiaries to a seller after the consummation of an Acquisition;
(bg)Liens not otherwise permitted by the foregoing provisions of this Section 6.5, provided that (1) the aggregate outstanding amount secured by all such Liens shall not at any time exceed $25,000,000 (2) [reserved], (3) at the time of such incurrence and immediately after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (4) to the extent any Liens on the Collateral outstanding under this clause (r) secure any Indebtedness for borrowed money, (x) the aggregate outstanding amount secured by all such Liens shall not at any time exceed $10,000,000 and (y) the Parent Borrower, the applicable Credit Parties and the Agents shall enter into an intercreditor agreement in form and substance reasonably satisfactory to the Agents providing for such Indebtedness to be secured on a junior basis to the Liens securing the Obligations (and the Lenders hereby authorize the Agents to negotiate and enter into any such documentation);
(bh)Liens on Collateral securing obligations in respect of any Bi-lateral LC/WC Agreement outstanding pursuant to Section 6.7(aa); provided that, either (x) the obligations under such Bi-lateral LC/WC Agreement shall constitute Obligations or (y) a representative for the holders thereof shall have entered into an intercreditor agreement providing that the Liens securing such Bi-lateral LC/WC Agreement are junior to the Liens securing the Obligations in form and substance reasonably satisfactory to the Administrative Agent (and the Lenders hereby authorize the Administrative Agent to negotiate and enter into any such documentation); and
(bi)Liens on Collateral securing obligations in respect of Permitted Refinancing Indebtedness permitted to be outstanding under this Agreement and to the extent such Liens are permitted pursuant to the proviso to clause (e) of the definition of “Permitted Refinancing Indebtedness”.
For purposes of determining compliance with this Section 6.5, if a Lien meets, in whole or in part, the criteria of one or more of the categories of Liens (or any portion thereof) permitted in this Section 6.5, Parent Borrower may, in its sole discretion, classify or divide (and reclassify and redivide) such Lien (or any portion thereof) in any manner that complies with this Section 6.5 and will be entitled to only include the amount and type of such Lien or liability secured by such Lien (or any portion thereof) in one of the above clauses and such Lien will be treated as being incurred or existing pursuant to only such clause or clauses (or any portion thereof).
6.25Affiliates. The Parent Borrower will not, and will not permit any Subsidiary to, enter into any transaction (including, without limitation, the purchase or sale of any Property or service) with, or make any payment or transfer to, any Affiliate unless such transaction, payment or transfer is (a) otherwise permitted under this Agreement, (b) in the ordinary course of business of the Parent Borrower and/or such Subsidiary, (c) solely between or among the Parent Borrower and the other Borrowers and/or Guarantors, or solely among non-Borrowers, non-Guarantor Subsidiaries, (d) upon fair and reasonable terms (taken as a whole) not materially less favorable to the Parent Borrower or such Subsidiary than the Parent Borrower or such Subsidiary would obtain in a comparable arms-length transaction; provided, that
(x) in the event such transaction involves an aggregate consideration in excess of $30,000,000, the terms of such transaction have been approved by a majority of the members of the Board of Directors of the Parent Borrower and by a majority of the members of such Board of Directors having no personal stake in such transaction, if any (and such majority or majorities, as the case may be, determines that such transaction satisfies the criteria in clause (d)) and (y) in the event such transaction involves an aggregate consideration in excess of $50,000,000, the Parent Borrower has received a written opinion from an Independent Financial Advisor stating that such transaction is fair to the Parent Borrower or such Subsidiary from a financial point of view or stating that the terms are not materially less favorable than those that could have been obtained by the Parent Borrower or such Subsidiary in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate, (e) a Restricted Payment permitted by Section 6.12 or (f) an Investment permitted by Section 6.4; provided that any Investment in an External Subsidiary will be made on commercially reasonable terms.
6.26Indebtedness. The Parent Borrower will not, and will not permit any Subsidiary, to create, incur or suffer to exist any Indebtedness, except:
(bj)The Loans and the other Obligations under the Credit Documents;
(bk)Indebtedness of Parent Borrower and the other Credit Parties under the Superpriority Term Loans in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions);
(bl)Indebtedness of Parent Borrower and the other Credit Parties under the Extended Term Loans in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions);
(bm)Indebtedness of Parent Borrower and the other Credit Parties under the Existing 2023 Term Loans in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions);
(bn)Indebtedness of Parent Borrower and the other Credit Parties under the 2025 Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions);
(bo)Indebtedness of Parent Borrower and the other Credit Parties under the 2024 Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions);
(bp)Indebtedness of Parent Borrower and the other Credit Parties under the New 2L Notes in the aggregate principal amount outstanding on the Closing Date (after giving effect to the Transactions), plus any additional principal amount incurred pursuant to the payment-in-kind or capitalization of periodic interest due on the New 2L Notes plus any additional principal amount incurred pursuant to a Registered Exchange Offer;
(bq)Indebtedness of the Parent Borrower and its Subsidiaries existing as of the Closing Date (other than Indebtedness outstanding pursuant to Section (b), (c), (e), and (g)) and set forth on Schedule 6.7;
(br)Indebtedness consisting of avals by any of the Parent Borrower or its Subsidiaries for the benefit of, and with respect to obligations which are not classified as Indebtedness of, any of the Parent Borrower or its Subsidiaries which are entered into in the ordinary course of business and consistent with standard business practices;
(bs)[reserved];
(bt)Any Permitted Refinancing Indebtedness in respect of any Indebtedness referred to in clauses (b), (c), (d), (e), (f), (g), (h) above;
(bu)Indebtedness arising from (a) the endorsement of negotiable instruments for deposit or collection or similar transactions in the ordinary course of business, or (b) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently (except in the case of daylight overdrafts) drawn against insufficient funds in the ordinary course of business;
(bv)Indebtedness (other than Indebtedness for borrowed money) arising from agreements of Parent Borrower or a Subsidiary providing for indemnification, contribution, earnout, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection any acquisition or Disposition otherwise permitted under this Agreement;
(bw)Indebtedness consisting of the financing of insurance premiums;
(bx)Indebtedness incurred by Parent Borrower or its Subsidiaries in respect of workers’ compensation claims, health, disability or other employee benefits or property, casualty or liability insurance, self-insurance obligations, performance, bid, surety and similar bonds and completion Guarantees (not for borrowed money) provided in the ordinary course of business;
(by)Indebtedness incurred in the ordinary course of business in connection with cash pooling arrangements and cash management incurred in the ordinary course of business in respect of netting services and similar arrangements in each case in connection with cash management and deposit accounts, but only to the extent, with respect to any such arrangements, that the total amount of deposits subject to such arrangements equals or exceeds the total amount of overdrafts or similar obligations subject thereto;
(bz)Indebtedness in respect of performance, surety, customs and appeal bonds, or any indemnity agreement related thereto, arising in the ordinary course of business;
(ca)Other Indebtedness of the Parent Borrower and its Subsidiaries; provided that, at the time of the creation, incurrence or assumption of such other Indebtedness and after giving effect thereto, the aggregate amount of all such other Indebtedness does not exceed an amount equal to $50,000,000;
(cb)Guarantee Obligations in respect of Indebtedness permitted under this Section
6.7; provided that (i) if any Indebtedness that is Guaranteed is subordinated to the Obligations then any Guarantee Obligations in respect of such Indebtedness shall be subordinated to the Obligations of the applicable Credit Party to the same extent and on terms not materially less favorable to the Lenders as the Indebtedness so Guaranteed is subordinated to the Obligations, (ii) no such permitted Indebtedness in respect of the Existing 2025 Notes, New 2L Notes, Extended Term Loans, Existing 2023 Term Loans and/or the Superpriority Term Loan Agreement (or in each case any Permitted Refinancing Indebtedness thereof) shall be Guaranteed by any Subsidiary unless such Subsidiary has Guaranteed the applicable Obligations pursuant to a Guaranty, (iii) such Guarantee Obligations shall be incurred in compliance with Section 6.4, and
(iv) no such permitted Indebtedness of a Credit Party (other than the Swiss Borrower), other than any Indebtedness permitted pursuant to Section 6.7(a), (b), (c), (d), (e), (f), (g), (h) or (k), shall be Guaranteed by another Credit Party (other than the Swiss Borrower) and (v) no such permitted Indebtedness of an External Subsidiary shall be Guaranteed by a Credit Party unless otherwise permitted pursuant to Section 6.4;
(cc)[reserved];
(cd)Indebtedness in respect of Swap Contracts permitted by Section 6.10;
(ce)Indebtedness among the Parent Borrower and its Subsidiaries (including between or among Subsidiaries) incurred in accordance with Section 6.4;
(cf)other Indebtedness (a) that is unsecured or, if secured, secured on a junior basis to the Obligations and the obligations under the Superpriority Term Loan Agreement, the Extended Term Loans, the Existing 2025 Notes and the New 2L Notes on substantially the same terms on which the New 2L Notes are subordinated to the Obligations and the obligations under the Superpriority Term Loan Agreement, the Extended Term Loans and the Existing 2025 Notes,
(b) that is expressly subordinated to the prior payment in full in cash of all Obligations and the obligations under the Superpriority Term Loan Agreement, the Extended Term Loans, the Existing 2025 Notes and the New 2L Notes, (c) that does not require any mandatory prepayments in cash prior to the Revolving Commitment Termination Date or the maturity date applicable to the Superpriority Term Loans, the Extended Term Loans, the Existing 2025 Notes and the New 2L Notes, (d) the final maturity date and weighted average life of which is no earlier than the Revolving Commitment Terminated Date and then remaining weighted average life of the Loans,
(e) the terms of which are no more restrictive to the Parent Borrower and its Subsidiaries than those under the Superpriority Term Loan Agreement and (f) the proceeds of which are used to prepay or repay amounts outstanding under the Existing 2023 Term Loans or the Existing 2024 Notes;
(cg)[reserved];
(ch)Indebtedness of the Parent Borrower or any Subsidiary incurred to finance the acquisition, construction or improvement of any fixed or capital assets, including Finance Lease Obligations and any Indebtedness assumed in connection with the acquisition of any such assets or secured by a Lien on any such assets prior to the acquisition thereof (and not in contemplation
thereof), and extensions, renewals and replacements of any such Indebtedness that do not increase the outstanding principal amount thereof; provided that (i) such Indebtedness is incurred prior to or within 180 days after such acquisition or the completion of such construction or improvement and (ii) the aggregate principal amount of Indebtedness permitted by this clause shall not exceed
$20,000,000 at any time outstanding;
(ci)Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided, however, that such Indebtedness is extinguished within five Business Days of incurrence;
(aa) [reserved]; and
(bb) Indebtedness consisting of Bi-lateral LC/WC Agreements in an aggregate maximum principal exposure amount at any one time up to an amount equal to (x) $55,000,000 less (y) the amount of Indebtedness outstanding at such time under Bi-lateral LC/WC Agreements that constitutes Obligations under this Agreement.
Notwithstanding anything in this Section 6.7 to the contrary, (x) any Indebtedness owing by any Credit Party (including, notwithstanding Section 6.19 hereof, the Swiss Borrower) to any Subsidiary that is not a Credit Party shall be (a) unsecured and (b) expressly subordinated to the prior payment in full in cash of all Obligations (with respect to the Swiss Borrower, of the Swiss Borrower); provided that such Indebtedness shall be incurred in compliance with Section 6.4 and (y) any such Indebtedness owing by any Foreign Subsidiary to any Domestic Subsidiary shall be expressly subordinated to the prior payment in full in cash of all Obligations.
The accrual of interest, the accretion of accreted value, the payment of interest in the form of additional Indebtedness, the payment of dividends on Disqualified Equity Interests in the form of additional shares of Disqualified Equity Interests, accretion or amortization of original issue discount or liquidation preferences and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the Exchange Rate or currencies will not be deemed to be an incurrence of Indebtedness for purposes of this Section 6.7. The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the principal amount thereof that would be shown on a consolidated balance sheet of the Parent Borrower dated such date prepared in accordance with GAAP.
This Agreement will not treat (1) unsecured Indebtedness as subordinated or junior in right of payment to secured Indebtedness merely because it is unsecured or (2) senior Indebtedness as subordinated or junior in right of payment to any other senior Indebtedness merely because it has a junior priority with respect to the same collateral.
Further, for purposes of determining compliance with this Section 6.7, if an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of Indebtedness (or any portion thereof) permitted by this Section 6.7, Parent Borrower may, in its sole discretion, classify or divide (and reclassify and redivide) such item of Indebtedness (or any portion thereof) in any manner that complies with this Section 6.7 and will be entitled to only include the amount and type of such item of Indebtedness (or any portion thereof) in one of the above clauses (or any portion thereof) and such item of Indebtedness (or any portion thereof) shall be treated as having been incurred or existing pursuant to only such clause or clauses (or any portion thereof); provided, that all Indebtedness outstanding under this Agreement and all Indebtedness (other than in respect of Swap Agreements, Bi-lateral LC/WC Agreements and ordinary course cash management obligations) permitted to be incurred or outstanding pursuant to Section 6.7(b), (c), (d), (e), (f) or (g) shall at all times be deemed to have been incurred pursuant to Section 6.7(a), (b), (c), (d), (e), (f) or (g), as applicable.
6.27Negative Pledge Clauses. The Parent Borrower will not, and will not permit any Subsidiary to, enter into or suffer to exist or become effective any agreement that prohibits or limits the ability of the Parent Borrower or any Subsidiary to create, incur, assume or suffer to exist any Lien upon any of its property or revenues, whether now owned or hereafter acquired, other than (a) restrictions and conditions in this Agreement, the other Credit Documents, any Indebtedness permitted by Section 6.7(a), 6.7(b), 6.7(c), 6.7(d), 6.7(e), 6.7(f) or 6.7(g), any credit agreements, indentures or similar agreements governing Indebtedness permitted to be incurred or outstanding pursuant to Section 6.7 to the extent such agreements contain applicable Lien restrictions, in the good faith determination of the Parent Borrower, not materially less favorable to the Lenders than those contained in customary documentation governing similar Indebtedness in the market at the time of such incurrence, and any Permitted Refinancing Indebtedness in respect thereof, (b) customary restrictions and conditions contained in agreements relating to Dispositions permitted by Section 6.3 pending the consummation of such Dispositions, (c) restrictions or conditions imposed by any agreement relating to secured Indebtedness permitted by this Agreement if such restrictions or conditions apply only to the property or assets securing such Indebtedness or the Persons obligated thereon, (d) customary provisions in leases and other contracts restricting the assignment, subletting or other transfer thereof (including the granting of any Lien), (e) restrictions or conditions imposed by restrictions on cash and other deposits or net worth provisions in leases and other agreements entered into in the ordinary course of business, (f) restrictions and conditions binding on a Subsidiary or its assets at the time such Subsidiary first becomes a Subsidiary or such assets were first acquired by such Subsidiary (other than a Subsidiary that was a Subsidiary on the Closing Date or assets owned by any Subsidiary on the Closing Date), so long as such contractual obligations were not entered into solely in contemplation of such Person becoming a Subsidiary or assets being acquired, (g) customary provisions in partnership agreements, limited liability company governance documents, joint venture agreements and other similar agreements that restrict the transfer of assets of, or ownership interests in, the relevant partnership, limited liability company, joint venture or similar Person, (h) [reserved], (i) with respect to bank deposit accounts, cash sweep arrangements, cash management services or cash pooling arrangements, conditions that require consent of the bank before any lien or pledge arrangement securing obligations and liabilities of the Parent Borrower or any Subsidiary are enacted (with each of the foregoing being within the general parameters customary in the banking industry or arising pursuant to the applicable banking institution’s general terms and conditions) or (j) restrictions in respect of assets that, taken as a whole, are immaterial, provided that in good faith judgment of the Parent Borrower, such conditions would not have a material adverse effect on the ability of the Borrowers to satisfy its Obligations hereunder.
6.28Limitation on Restrictions on Subsidiary Distributions. The Parent Borrower will not, and will not permit any Subsidiary to, enter into or suffer to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary of the Parent Borrower to (a) pay dividends or make any other distributions in respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness owed to, any Credit Party, (1) make loans or advances to or Investments in any Credit Party or (2) transfer any of its assets to any Credit Party, except for such encumbrances or restrictions existing under or by reason of (a) restrictions and conditions existing under the Credit Documents, any other Indebtedness permitted by Section 6.7(a), 6.7(b), 6.7(c), 6.7(d), 6.7(e), 6.7(f) or 6.7(g), any credit agreements, indentures or similar agreements governing Indebtedness permitted to be incurred pursuant to Section 6.7 to the extent such agreements’ applicable restrictions will not materially impair any Borrower’s ability to make principal or interest payment on the Loans, and any Permitted Refinancing Indebtedness in respect thereof, (b) any restrictions with respect to a Subsidiary imposed pursuant to an agreement which has been entered into in connection with the disposition of all or substantially all of the Capital Stock or assets of such Subsidiary, (c) any restrictions with respect to assets encumbered by a Lien permitted by Section 6.5 so long as such restriction applies only to the assets encumbered by such permitted Lien, (d) to the extent required by the minority shareholders thereof, any restriction with respect to a Foreign Subsidiary of which less than 90% of the Voting Stock is owned by Parent Borrower or any
of its Subsidiaries, (e) [reserved], (f) applicable Laws, (g) customary restrictions and conditions contained in any agreement relating to the Disposition of any property not prohibited by Section 6.3 pending the consummation of such Disposition, (h) any agreement in effect at the time a Subsidiary becomes a Subsidiary of the Parent Borrower, so long as such agreement was not entered into in connection with or in contemplation of such person becoming a Subsidiary of the Parent Borrower, (i) any instrument governing Indebtedness assumed in connection with any permitted Acquisition and permitted pursuant to Section 6.7, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired; or (j) any encumbrances or restrictions imposed by any amendments or refinancings that are otherwise permitted by the Credit Documents of the contracts, instruments or obligations referred to in clauses (b), (h) or (i) above; provided that such amendments or refinancings are no more materially restrictive with respect to such encumbrances and restrictions than those prior to such amendment or refinancing; provided, further, that this Section 6.9 shall not apply to encumbrances or restrictions (x) arising by reason of customary non-assignment or no-subletting clauses in leases or other contracts entered into in the ordinary course of business and consistent with past practices or (y) in agreements governing any Indebtedness permitted pursuant to Section 6.7(y) otherwise permitted hereby and covering only those assets financed by such Indebtedness.
6.29Swap Contracts. The Parent Borrower will not, and will not permit any Subsidiary to, enter into or remain a party to any Swap Contract for purposes of financial speculation.
6.30Receivables. The Parent Borrower and its Subsidiaries shall not enter into any receivables financing program, factoring or similar sale of accounts receivable and related rights and property.
6.31Restricted Payments. The Parent Borrower will not, and will not permit any Subsidiary to, declare or pay any dividend (other than dividends payable solely in Capital Stock of the Person making such dividend) on, or make any payment on account of, or set apart assets for a sinking or other analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any Capital Stock of the Parent Borrower or any Subsidiary, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Parent Borrower or any Subsidiary (collectively, “Restricted Payments”), except that:
(cj)any Subsidiary may make Restricted Payments to the Parent Borrower or another Subsidiary; provided that, in the case of Restricted Payments to (i) any Subsidiary, the Capital Stock of which is not 100% pledged as Collateral or (ii) an External Subsidiary, such Subsidiary shall receive no more than such Subsidiary’s ratable share of the Restricted Payment;
(ck)[reserved];
(cl)the Parent Borrower may make payments in cash in lieu of the issuance of fractional shares or may repurchase partial interests in its Capital Stock for nominal amounts which are required to be repurchased in connection with the exercise of stock options or warrants to permit the issuance of only whole shares of Capital Stock;
(cm)repurchases of Capital Stock deemed to occur as a result of Capital Stock being utilized to satisfy tax withholding obligations upon (A) the exercise of stock options or (B) the vesting of other equity awards that constitute Capital Stock;
(cn)the Parent Borrower may repurchase its Capital Stock upon the cashless exercise of stock options, warrants or other convertible securities as a result of the Parent Borrower
accepting such options, warrants or other convertible securities as satisfaction of the exercise price of such Capital Stock;
(co)the Parent Borrower may pay for the repurchase, retirement or other acquisition or retirement for value of Capital Stock of the Parent Borrower (including related stock appreciation rights or similar securities) held by any future, present or former director, officer, member of management, employee or consultant of the Parent Borrower or any of its Subsidiaries (or the estate, heirs, family members or former family members of any of the foregoing) (collectively, “Covered Persons”); provided that (A) at the time of any such repurchase, retirement or other acquisition or retirement for value no Default or Event of Default exists or would result, (B) the aggregate amount of Restricted Payments made under this clause (f) in any fiscal year does not exceed (x) $2,500,000 (the “Yearly Limit”) plus (y) the portion of the Yearly Limit from the immediately preceding fiscal year (but not fiscal years ended prior to the Closing Date) which was not expended by the Parent Borrower for Restricted Payments in such fiscal year (the “Carryover Amount” and in calculating the Carryover Amount for any fiscal year, the Yearly Limit applicable to the previous fiscal years shall be deemed to have been utilized first by any Restricted Payments made under this clause (f) in such fiscal year) plus (z) the net cash proceeds of any “key-man” life insurance policies of the Parent Borrower or any of its Subsidiaries that have not been used to make any repurchases, retirements or acquisitions under this clause (f); provided, further, that cancellation of Indebtedness owing to the Parent Borrower or any Subsidiary from Covered Persons in connection with a repurchase of such securities of the Parent Borrower will not be deemed to constitute a Restricted Payment for purposes of this Section 6.12;
(cp)provided no Default or Event of Default has occurred and is continuing, Restricted Payments made in cash, Cash Equivalents or with assets that do not (and are not required hereunder or under any other Credit Document to) constitute Collateral may be made in an aggregate amount not to exceed $15,000,000; provided that, if any such Restricted Payment is to be made, directly or indirectly, with proceeds of the Credit Extensions, then such Restricted Payment shall only be permitted under this clause (g) if the Payment Conditions are satisfied on a Pro Forma Basis immediately after giving effect to such Restricted Payment;
(cq)Restricted Payments to the extent required to consummate the Extended Term Loan Paydown;
(cr)[reserved];
(cs)[reserved]; and
(ct)Restricted Payments pursuant to the Diebold, Incorporated 2014 Non-Qualified Stock Purchase Plan (or any successor thereto) in an aggregate amount (net of employee contributions) not to exceed $2,000,000 in any fiscal year.
Notwithstanding anything herein to the contrary, the foregoing provisions of Section 6.12 will not prohibit the payment of any Restricted Payment or the consummation of any redemption, purchase, defeasance or other payment within 60 days after the date of declaration thereof or the giving of notice, as applicable, if at the date of declaration or the giving of such notice such payment would have complied with the provisions of this Section 6.12 (it being understood that such Restricted Payment shall be deemed to have been made on the date of declaration or notice for purposes of such provision).
6.32Certain Payments of Restricted Indebtedness; Modifications of Restricted Indebtedness Documents.
(a)The Parent Borrower will not, and will not permit any Subsidiary to, make or offer to make any optional or voluntary payment, prepayment, repurchase or redemption of or otherwise optionally or voluntarily defease or segregate funds with respect to the Superpriority Term Loans, the 2025 Notes, the Extended Term Loans, the New 2L Notes, any Indebtedness that is secured by a Lien on any Collateral ranking junior to the Lien on the Collateral securing any of the Obligations, any unsecured Indebtedness, Subordinated Indebtedness, the Existing 2023 Term Loans, the Existing 2024 Notes and any Indebtedness issued in exchange for, or the net proceeds of which are used to extend, renew, refinance, replace, defease or refund (whether by tender offer, open market purchases, negotiated transactions or otherwise, in each case, including by exchange offers and private exchanges) any of the foregoing (including any Permitted Refinancing Indebtedness in respect thereof) (collectively, the “Restricted Indebtedness”) (but, with respect to the Superpriority Term Loans, the Extended Term Loans, the 2025 Notes and the New 2L Notes, solely to the extent such payment, prepayment, repurchase, redemption or other optional or voluntary defeasement would be made, directly or indirectly, with the proceeds of Credit Extensions under this Agreement) except for (a) payments, prepayments, repurchases or redemptions, or other optional or voluntary defeasements, with the proceeds of any Permitted Refinancing Indebtedness in respect of such Restricted Indebtedness that is permitted by Section 6.7, (b) payments, prepayments, repurchases or redemptions, or other optional or voluntary defeasements to the extent the Payment Conditions are satisfied on a Pro Forma Basis; (c) payments, repurchases or redemptions of amounts outstanding under the Existing 2023 Term Loans or the Existing 2024 Notes with amounts actually received (x) by the Parent Borrower from and after the Closing Date to such date from any capital contributions to, or the sale or issuance of Equity Interests of, the Parent Borrower (other than (i) Disqualified Equity Interests,
(ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Parent Borrower or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interest the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than such amounts outstanding under the Existing 2023 Term Loans or the Existing 2024 Notes, as applicable)) or (y) by the Parent Borrower or a Subsidiary from the Incurrence of Indebtedness pursuant to Section 6.7(w); (d) payments, repurchases or redemptions of the New 2L Notes with the Net Cash Proceeds actually received by the Parent Borrower from and after the Closing Date to such date from any capital contributions to, or the sale or issuance of Equity Interests of, the Parent Borrower (other than (i) Disqualified Equity Interests, (ii) Equity Interests issued or sold to a Subsidiary or an employee stock ownership plan or similar trust to the extent such sale to an employee stock ownership plan or similar trust is financed by loans from or guaranteed by the Parent Borrower or any Subsidiary unless such loans have been repaid with cash on or prior to the date of determination and (iii) Equity Interests the Net Cash Proceeds of which are used to repay long-term Indebtedness for borrowed money (other than such New 2L Notes)) not in excess of
$100,000,000, (e) payments, repurchases or redemptions of the Existing 2024 Notes in connection with the Registered Exchange Offer and (f) repayments of intercompany Indebtedness
(i) owing to the Parent Borrower, the Borrower or another Credit Party, (ii) owing to an External Subsidiary from another External Subsidiary and (iii) owing to an External Subsidiary from a Credit Party in connection with ordinary course cash management activities.
(b)The Parent Borrower will not, and will not permit any Subsidiary to, agree to any material amendment, restatement, supplement or other modification to, or waiver of, any of its material rights under any operative document or agreement governing any Restricted Indebtedness except, in each case, to the extent such amendment, restatement, supplement or other modification would not, taken as a whole, reasonably be expected to disproportionately, materially and adversely affect the interests of the Lenders.
6.33Amendments to Certain Documents. The Parent Borrower will not, and will not permit any Subsidiary to amend, supplement, terminate, replace or waive or otherwise modify any Organizational Document of the Parent Borrower or any Credit Party, in each case, in a manner, taken as a whole, that is materially adverse to the interests of the Lenders.
6.34[Reserved].
6.35Fiscal Year. The Parent Borrower shall not change its Fiscal Year; provided, that Parent Borrower may change its fiscal quarter and/or Fiscal Year end one or more times, subject to such adjustments to this Agreement as Parent Borrower and Administrative Agent shall reasonably agree are necessary or appropriate in connection with such change (and the parties hereto hereby authorize Parent Borrower and the Administrative Agent to make any such amendments to this Agreement as they jointly deem necessary to give effect to the foregoing).
6.36No Segregation of Assets or Finanziamenti Destinati. No Italian Credit Party shall: (a)segregate any of its assets under or for the purposes set out in article 2447bis of the Italian Civil Code;
(b) enter into any transaction which could qualify as a finanziamento destinato pursuant to article 2447decies of the Italian Civil Code; or (c) issue any class of stock or any other financial instruments under article 2447ter of the Italian Civil Code, in each case without the written consent of the Required Lenders.
6.37Canadian Defined Benefit Plans. Without the consent of the Administrative Agent, no Credit Party shall maintain, administer, contribute to or have any liability in respect of any Canadian Defined Benefit Plan or acquire an interest in a Person if such Person sponsors, maintains, administers or contributes to, or has any liability in respect of any Canadian Defined Benefit Plan.
6.38Swiss Borrower. Notwithstanding anything to the contrary set forth herein, solely for purposes of this Section 6, the Swiss Borrower shall be deemed not to be a Borrower or a Credit Party.
SECTION 7. GUARANTY.
7.20Guaranty of the Obligations. Subject to the provisions of Section 7.2, in consideration of and to induce the Lenders to make the Loans and the Issuing Banks to issue Letters of Credit,
(a)each US Guarantor and each Canadian Credit Party hereby absolutely, irrevocably and unconditionally guarantees to the Administrative Agent for the ratable benefit of the Secured Parties, jointly and severally with the other US Guarantors and Canadian Credit Parties, as primary obligor and not merely as surety, the due and punctual payment in full when due of the Obligations; and
(b)subject to the European Limitations, each European Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Administrative Agent for the ratable benefit of the Secured Parties, jointly and severally with the other European Guarantors, as primary obligor and not merely as surety, the due and punctual payment in full when due of the Obligations,
in each case, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise (including amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a) or similar or equivalent provisions under any other Debtor Relief Laws), whether or not from time to time reduced or extinguished or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the applicable Borrower, whether now or hereafter existing, and whether due or to become due, including principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the commencement of any proceeding under any applicable Debtor Relief Laws, whether or not such interest is an allowed claim in such proceeding), fees and costs of collection. This Guaranty constitutes a guaranty of payment and not of collection. Notwithstanding anything contained in this Agreement or any other Credit Document to the contrary, the guarantee provided by the European Guarantors hereunder shall be subject to the European Limitations.
7.21Limitation of Guaranty. Any term or provision of this Section 7 or any other Credit Document to the contrary notwithstanding, the maximum aggregate amount of the Guaranteed Obligations for which any Guarantor shall be liable shall not exceed the maximum amount for which such Guarantor can be liable without rendering this Section 7 or any other Credit Document, as it relates to such Guarantor, subject to avoidance under applicable law relating to fraudulent conveyance or fraudulent transfer (including Section 548 of the Bankruptcy Code, Section 286 of the Companies Act 1963 or any applicable provisions of comparable Debtor Relief Laws or applicable federal, state, provincial or other applicable law) (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect ii) to all other liabilities of such Guarantor Subsidiary, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor Subsidiary in respect of intercompany Indebtedness to any Borrower to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by such Guarantor Subsidiary hereunder) and iii) to the value as assets of such Guarantor Subsidiary (as determined under the applicable provisions of such Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor Subsidiary pursuant to (i) applicable law, (ii) this clause iii) or
(iii) any other Contractual Obligations providing for an equitable allocation among such Guarantor Subsidiary and other Subsidiaries or Affiliates of any Borrower of Obligations arising under this Section
7.2 or other guaranties of the Obligations of any Borrower by the parties.
7.22Contribution. To the extent that any Guarantor Subsidiary shall be required hereunder to pay a portion of the Guaranteed Obligations exceeding the greater of (a) the amount of the economic benefit actually received by such Guarantor Subsidiary from the Loans and the other financial accommodations provided to the Borrowers under the Credit Documents and (b) the amount such Guarantor Subsidiary would otherwise have paid if such Guarantor Subsidiary had paid the aggregate amount of the Guaranteed Obligations (excluding the amount thereof repaid by the applicable Borrowers) in the same proportion as such Guarantor Subsidiary’s net worth at the date enforcement is sought hereunder bears to the aggregate net worth of all the Guarantor Subsidiaries at the date enforcement is sought hereunder, then such Guarantor shall be reimbursed by such other Guarantor Subsidiaries for the amount of such excess, pro rata, based on the respective net worth of such other Guarantor Subsidiaries at the date enforcement hereunder is sought.
7.23Liability of Guarantors Absolute. Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of its Guaranteed Obligations (other than Contingent Obligations). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(c)this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(d)the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between any applicable Borrower and any Secured Party with respect to the existence of such Event of Default;
(e)the obligations of each Guarantor hereunder are independent of the obligations of each applicable Borrower and the obligations of any other guarantor (including any other Guarantor) of the obligations of any applicable Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any applicable Borrower or any of such other guarantors and whether or not any applicable Borrower is joined in any such action or actions;
(f)payment by any Guarantor of a portion, but not all, of its Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor’s liability for any portion of its Guaranteed Obligations which have not been paid and without limiting the generality of the foregoing, if any Secured Party is awarded a judgment in any suit brought to enforce any Guarantor’s covenant to pay a portion of its Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of its Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor’s liability hereunder in respect of its Guaranteed Obligations;
(g)any Secured Party, upon such terms as it deems appropriate, without notice or demand to or on any Person and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor’s liability hereunder, from time to time may, in accordance with the terms of this Agreement and the other Credit Documents, (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of any Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, any Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of any Guaranteed Obligations and take and hold security for the payment hereof or any Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of any Guaranteed Obligations, any other guaranties of any Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Secured Party in respect hereof or any Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Secured Party may have against any such security, in each case as such Secured Party in its discretion may determine consistent with the applicable Credit Document, the applicable Cash Management Document, the applicable Bi- lateral LC/WC Agreement or the applicable Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or
subrogation or other right or remedy of any Guarantor against any applicable Borrower or any security for its Guaranteed Obligations; and (vi) exercise any other rights available to it under the Credit Documents, any Cash Management Documents, any Bi-lateral LC/WC Agreement or any Hedge Agreements; and
(h)this Guaranty and the obligations of each Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of its Guaranteed Obligations (other than any Contingent Obligations)), including the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents, any Cash Management Documents, any Bi-lateral LC/WC Agreement or any Hedge Agreements, at law, in equity or otherwise) with respect to its Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of its Guaranteed Obligations;
(ii) any rescission, waiver, amendment, extension or modification of, or any consent to departure from, any of the terms or provisions (including provisions relating to Events of Default) hereof, any of the other Credit Documents, any of the Cash Management Documents, any of the Bi- lateral LC/WC Agreements any of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for its Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Cash Management Document, such Bi-lateral LC/WC Agreement, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) its Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Credit Documents, any of the Cash Management Documents, any of the Bi- lateral LC/WC Agreements or any of the Hedge Agreements or from the proceeds of any security for its Guaranteed Obligations, except to the extent such security also serves as collateral for Indebtedness other than its Guaranteed Obligations) to the payment of Indebtedness other than its Guaranteed Obligations, even though any Secured Party might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any Secured Party’s consent to the change, reorganization or termination of the corporate structure or existence of the Parent Borrower or any of its Subsidiaries and to any corresponding restructuring of its Guaranteed Obligations; (vi) any failure to perfect or continue perfection of, or any failure of priority of, a security interest in any collateral which secures any of its Guaranteed Obligations; (vii) any defenses, setoffs or counterclaims which any applicable Borrower may allege or assert against any Secured Party in respect of its Guaranteed Obligations, including failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of its Guaranteed Obligations.
7.24Waivers by Guarantors. Each Guarantor hereby waives, for the benefit of Secured Parties: (a) any right to require any Secured Party, as a condition of payment or performance by such Guarantor, to (i) proceed against any applicable Borrower, any other guarantor (including any other Guarantor) of the Guaranteed Obligations or any other Person, (ii) proceed against or exhaust any security held from any applicable Borrower, any such other guarantor or any other Person, (iii) proceed against or have resort to any balance of any Deposit Account or credit on the books of any Secured Party in favor of any applicable Borrower or any other Person, or (iv) pursue any other remedy in the power of any Secured Party whatsoever; (b) any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of any applicable Borrower or any other Guarantor including any defense based on or arising out of the lack of validity or the unenforceability of the Guaranteed Obligations or any agreement or instrument relating thereto or by reason of the cessation of the liability of any Borrower or any other Guarantor from any cause other than payment in full of the Guaranteed Obligations (other than any Contingent Obligations); (c) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (d) any defense based upon any Secured Party’s errors or omissions in the administration of the Guaranteed Obligations, except behavior by such Secured Party which amounts to gross negligence or willful misconduct; (e) (i) any principles or provisions of law, statutory or otherwise, which are or might be in conflict with the terms hereof and any legal or equitable discharge of such Guarantor’s obligations hereunder, (ii) the benefit of any statute of limitations affecting such Guarantor’s liability hereunder or the enforcement hereof, (iii) any rights to setoffs, recoupments and counterclaims, and (iv) promptness, diligence and any requirement that any Secured Party protect, secure, perfect or insure any security interest or lien or any property subject thereto; (f) notices, demands, presentments, protests, notices of protest, notices of dishonor and notices of any action or inaction, including acceptance hereof, notices of default hereunder, the other Credit Documents, the Cash Management Documents, the Bi-lateral LC/WC Agreements, the Hedge Agreements or any agreement or instrument related thereto, notices of any renewal, extension or modification of the Guaranteed Obligations or any agreement related thereto, notices of any extension of credit to any applicable Borrower and notices of any of the matters referred to in Section 7.4 and any right to consent to any thereof; and (g) any defenses or benefits that may be derived from or afforded by law which limit the liability of or exonerate guarantors or sureties, or which may conflict with the terms hereof.
7.25Guarantors’ Rights of Subrogation, Contribution, Etc. Until its Guaranteed Obligations (other than Contingent Obligations) shall have been irrevocably paid in full and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cash collateralized, backstopped or cancelled (on terms and conditions acceptable to the Administrative Agent), each Guarantor hereby waives any claim, right or remedy, direct or indirect, that such Guarantor now has or may hereafter have against any applicable Borrower or any other Guarantor or any of its assets in connection with this Guaranty or the performance by such Guarantor of its obligations hereunder, in each case whether such claim, right or remedy arises in equity, under contract, by statute, under common law or otherwise and including without limitation (a) any right of subrogation, recourse, reimbursement or indemnification that such Guarantor now has or may hereafter have against any applicable Borrower with respect to its Guaranteed Obligations, (b) any right to enforce, or to participate in, any claim, right or remedy that any Secured Party now has or may hereafter have against any applicable Borrower, (c) any benefit of, and any right to participate in, any collateral or security now or hereafter held by any Secured Party and (d) any right or power to vote as a creditor of any Dutch Credit Party or its estate other than in accordance with the instruction of the Administrative Agent for a composition (akkoord) within the meaning of the Dutch Bankruptcy Act (Faillissementswet). In addition, until its Guaranteed Obligations (other than Contingent Obligations) shall have been irrevocably paid in full and the applicable Revolving Commitments shall have terminated and all applicable Letters of Credit shall have expired or been cash collateralized, backstopped or cancelled (on terms and conditions acceptable to the Administrative Agent), each Guarantor shall withhold exercise of any right of contribution such Guarantor may have against any other guarantor (including any other Guarantor) of its Guaranteed Obligations, including, without limitation, any such right of contribution as contemplated by Section 7.3. Each Guarantor further agrees that, to the extent the waiver or agreement to withhold the exercise of its rights of subrogation, recourse, reimbursement, indemnification and contribution as set forth herein is found by a court of competent jurisdiction to be void or voidable for any reason, any rights of subrogation, recourse, reimbursement or indemnification such Guarantor may have against any applicable Borrower or against any collateral or security, and any rights of contribution such Guarantor may have against any such other guarantor, shall be junior and subordinate to any rights any Secured Party may have against any
applicable Borrower, to all right, title and interest any Secured Party may have in any such collateral or security, and to any right any Secured Party may have against such other guarantor (including any Guarantor). If any amount shall be paid to any Guarantor on account of any such subrogation, reimbursement, indemnification or contribution rights at any time when its Guaranteed Obligations shall not have been finally and indefeasibly paid in full (other than Contingent Obligations), such amount shall be (i) held in trust for (or, in jurisdictions where the concept of trust is no recognized, held for the benefit of), the Administrative Agent on behalf of Secured Parties and shall forthwith be paid over to the Administrative Agent for the benefit of Secured Parties to be credited and applied against its Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof or (ii) in the case of a Swedish Guarantor, separated as “escrow funds” (Sw. redovisningsmedel) for the Administrative Agent on behalf of Secured Parties and shall promptly be paid over to the Administrative Agent for the benefit of the Secured Parties to be credited and applied against its Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.26Subordination of Other Obligations. Any Indebtedness of any Guarantor now or hereafter held by any Guarantor (the “Obligee Guarantor”) is hereby subordinated in right of payment to its Guaranteed Obligations, and any such indebtedness collected or received by the Obligee Guarantor upon an acceleration or enforcement action after an Event of Default has occurred and is continuing shall be (i) held in trust for (or, in jurisdictions where the concept of trust is no recognized, held for the benefit of) the Administrative Agent on behalf of Secured Parties and shall forthwith be paid over to the Administrative Agent for the benefit of Secured Parties to be credited and applied against its Guaranteed Obligations but without affecting, impairing or limiting in any manner the liability of the Obligee Guarantor under any other provision hereof or (ii) in the case of a Swedish Guarantor, separated as “escrow funds” (Sw. redovisningsmedel) for the Applicable Agent on behalf of Secured Parties and shall promptly be paid over to the Administrative Agent for the benefit of the Secured Parties to be credited and applied against its Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.
7.27Continuing Guaranty. This Guaranty is a continuing guaranty and shall remain in effect until all of the Guaranteed Obligations of each Guarantor shall have been paid in full (notwithstanding any intermediate settling of account) and the Revolving Commitments shall have terminated and all Letters of Credit shall have expired or been cash collateralized, backstopped or cancelled (on terms and conditions acceptable to the Administrative Agent). Each Guarantor hereby irrevocably waives any right to revoke this Guaranty as to future transactions giving rise to its Guaranteed Obligations.
7.28Authority of Guarantors. It is not necessary for any Secured Party to inquire into the capacity or powers of any Guarantor or the officers, directors or any agents acting or purporting to act on behalf of any of them.
7.29Financial Condition of the Borrowers. Any Credit Extension may be made to any applicable Borrower or continued from time to time, and any Cash Management Documents, Bi-lateral LC/WC Agreements and any Hedge Agreements may be entered into from time to time, in each case without notice to or authorization from any Guarantor regardless of the financial or other condition of such Borrower at the time of any such grant or continuation or at the time such Cash Management Document, such Bi-lateral LC/WC Agreement or such Hedge Agreement is entered into, as the case may be. No Secured Party shall have any obligation to disclose or discuss with any Guarantor its assessment, or any Guarantor’s assessment, of the financial condition of any applicable Borrower. Each Guarantor has adequate means to obtain information from each applicable Borrower on a continuing basis concerning the financial condition of such Borrower and its ability to perform its obligations under the Credit Documents, the Cash Management Documents, the Bi-lateral LC/WC Agreements and the Hedge
Agreements, and each Guarantor assumes the responsibility for being and keeping informed of the financial condition of each applicable Borrower and of all circumstances bearing upon the risk of nonpayment of its Guaranteed Obligations. Each Guarantor hereby waives and relinquishes any duty on the part of any Secured Party to disclose any matter, fact or thing relating to the business, operations or conditions of any applicable Borrower now known or hereafter known by any Secured Party. In the event any Secured Party, in its sole discretion, undertakes at any time or from time to time to provide any such information to any Guarantor, such Secured Party shall be under no obligation (a) to undertake any investigation not a part of its regular business routine, (b) to disclose any information that such Secured Party, pursuant to accepted or reasonable commercial finance or banking practices, wishes to maintain confidential or (c) to make any other or future disclosures of such information or any other information to any Guarantor.
7.30Default, Remedies. The Guaranteed Obligations of each Guarantor hereunder are independent of and separate from the Obligations of such Guarantor. If any Obligation of any applicable Borrower is not paid when due, or upon any Event of Default hereunder or upon any default by any applicable Borrower as provided in any other Credit Document, Cash Management Document, Bi-lateral LC/WC Agreement or Hedge Agreement, the Administrative Agent may, at its sole election, proceed directly and at once, without notice, against any Guarantor to collect and recover the full amount or any portion of the Obligations of such Borrower then due, without first proceeding against any applicable Borrower or any other guarantor (including the Guarantors) of its Guaranteed Obligations, or against any Collateral under the Credit Documents or joining any applicable Borrower or any other guarantor (including the Guarantors) in any proceeding against any Guarantor. At any time after maturity of the Guaranteed Obligations of a Guarantor, the Administrative Agent may (unless such Guaranteed Obligations have been paid in full (other than Contingent Obligations)), without notice to such Guarantor and regardless of the acceptance of any Collateral for the payment hereof, appropriate and apply toward the payment of such Guaranteed Obligations (a) any indebtedness due or to become due from any Secured Party to such Guarantor and (b) any moneys, credits or other property belonging to such Guarantor at any time held by or coming into the possession of any Secured Party or any of its respective Affiliates.
7.31Bankruptcy, Etc. So long as any Guaranteed Obligations remain outstanding, no Guarantor shall, without the prior written consent of the Administrative Agent acting pursuant to the instructions of Required Lenders, commence or join with any other Person in commencing any bankruptcy, reorganization, examinorship or insolvency case or proceeding of or against any applicable Borrower or any other Guarantor. The obligations of Guarantors hereunder shall not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any case or proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation, examinorship or arrangement of any applicable Borrower or any other Guarantor or by any defense which any applicable Borrower or any other Guarantor may have by reason of the order, decree or decision of any court or applicable body resulting from any such proceeding.
(b)Each Guarantor acknowledges and agrees that any interest on any portion of the Guaranteed Obligations which accrues after the commencement of any case or proceeding referred to in clause (a) above (or, if interest on any portion of the Guaranteed Obligations ceases to accrue by operation of law by reason of the commencement of such case or proceeding, such interest as would have accrued on such portion of the Guaranteed Obligations if such case or proceeding had not been commenced) shall be included in the Guaranteed Obligations because it is the intention of Guarantors and Secured Parties that the Guaranteed Obligations which are guaranteed by Guarantors pursuant hereto should be determined without regard to any rule of law or order which may relieve any applicable Borrower of any portion of such Guaranteed Obligations. Guarantors will permit any trustee in bankruptcy, receiver, interim receiver,
monitor, debtor in possession, assignee for the benefit of creditors or similar Person to pay the Administrative Agent, or allow the claim of the Administrative Agent in respect of, any such interest accruing after the date on which such case or proceeding is commenced.
(c)In the event that all or any portion of any Guaranteed Obligations are paid by any applicable Borrower, the obligations of Guarantors hereunder shall continue and remain in full force and effect or be reinstated, as the case may be, in the event that all or any part of such payment or payments are rescinded or recovered directly or indirectly from any Secured Party as a preference, fraudulent transfer or otherwise, and any such payments which are so rescinded or recovered shall constitute Guaranteed Obligations for all purposes hereunder.
7.32Waiver of Judicial Bond. To the fullest extent permitted by applicable law, each Guarantor waives the requirement to post any bond that otherwise may be required of any Secured Party in connection with any judicial proceeding to enforce such Secured Party’s rights to payment hereunder, security interest in or other rights to the Collateral or in connection with any other legal or equitable action or proceeding arising out of, in connection with, or related to this Guaranty and the Credit Documents, Cash Management Documents, Bi-lateral LC/WC Agreements or Hedge Agreements to which it is a party.
7.33Discharge of Guaranty Upon Sale of Guarantor. If all of the Capital Stock of any Guarantor or any of its successors in interest hereunder shall be sold or otherwise disposed of (including by merger, amalgamation or consolidation) to any Person that is not an affiliate of the Parent Borrower, in each case, in accordance with the terms and conditions hereof, the Guaranty of such Guarantor or such successor in interest, as the case may be, hereunder shall automatically be discharged and released without any further action by any Secured Party or any other Person effective as of the time of such sale or other disposition.
7.34Stay of Acceleration. If acceleration of the time for payment, or the liability of any Borrower to make any payment, of any amount specified to be payable by any Borrower hereunder is stayed, prohibited or otherwise affected upon any bankruptcy, arrangement or liquidation proceeding or other event affecting any Borrower or its payment of its obligations hereunder, all such amounts otherwise subject to acceleration or payment shall nonetheless be deemed for all purposes to be and to have become due and payable by such Borrower and shall be payable by the applicable Guarantors immediately after demand.
7.35Assignment. Subject to Section 10.6 hereof, the Secured Parties may assign the benefit of this Guaranty to any person and each Guarantor hereby consents to such assignment.
7.36Limitation of Guaranty under Applicable Laws.
(a)Notwithstanding any other provision of this Section 7, the guarantee, indemnity and other obligations of any Dutch Guarantor expressed to be assumed in this Section 7 shall be deemed not to be assumed by such Dutch Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of Article 2:98c Dutch Civil Code or any other applicable financial assistance rules under any relevant jurisdiction (the “Prohibition”) and the provisions of this Agreement and the other Credit Documents shall be construed accordingly. For the avoidance of doubt it is expressly acknowledged that the relevant Dutch Guarantors will continue to guarantee all such obligations which, if included, do not constitute a violation of the Prohibition.
(b)Notwithstanding any other provision of this Section 7 and the Credit Documents, the guarantee of the Guaranteed Obligations, and the obligations and liabilities of any French Guarantor under this Agreement and the Credit Documents to which it is a Party, are subject to the following limitations:
(lxi)the obligations and liabilities of any French Guarantor under this Agreement and the Credit Documents will not include any obligation or liability which, if incurred, would constitute financial assistance within the meaning of article L. 225-216 of the French Commercial Code and/or a misuse of assets and/or abuse of power, within the meaning of articles L. 241-3, L. 242-6 and L. 244-1 of the French Commercial Code or any other law or regulation having the same effect or any interpretation of such laws and/or regulations by the French courts (as the case may be);
(lxii)the obligations and liabilities of any French Guarantor under the Section 7 Guaranty of this Agreement and the Credit Documents shall be limited at any time to:
(1)in respect of the Guaranteed Obligations under this Agreement and the Credit Documents of any other Credit Party which is its direct or indirect Subsidiary, all amounts which will be due by such other Credit Party (which is its direct or indirect Subsidiary) as a Borrower only but not as a Guarantor (if it is not a French Credit Party), or as Borrower and/or, subject to the provisions of the paragraph below, as Guarantor (if it is a French Credit Party) under this Agreement and the Credit Documents; and
(2)in respect of the Guaranteed Obligations under this Agreement and the Credit Documents of any Credit Party which is not a direct or indirect Subsidiary of the relevant French Guarantor (a “Guaranteed Obligor”), the aggregate of all amounts borrowed directly or indirectly by any such Guaranteed Obligor under this Agreement and the Credit Documents to the extent any such amount(s) will have been on-lent (directly or indirectly) or otherwise made available to the relevant French Guarantor or its direct or indirect Subsidiaries (including, but not limited to, by way of intercompany loan agreements or similar arrangements whether direct or indirect) plus any accrued and unpaid interest, costs and fees in respect of or attributable to that on-lending, and which will be outstanding on the date a payment is to be made in respect of the Guaranteed Obligations of the relevant Guaranteed Obligor by the relevant French Guarantor under the Section 7 Guaranty of this Agreement (it being specified that any payment made by the French Guarantor under the Section 7 Guaranty of this Agreement in respect of that Guaranteed Obligor’s payment obligations under this Agreement and the Credit Documents shall automatically extinguish, pro tanto, the payment obligations under the relevant intercompany loan agreements or similar arrangements referred to above).
(lxiii)For the purposes of this Section “Subsidiary” means, in relation to any company, another company which is controlled by it within the meaning of article
L. 233-3 of the French Commercial Code.
(lxiv)It is acknowledged that such French Guarantor is not acting jointly and severally with the other Guarantors and shall not be considered as “co-débiteur solidaire” as to their obligations pursuant to the guarantee granted in accordance with the provisions of this Agreement.
(c)[Reserved.]
(d)The parties hereto agree to restrict (i) the enforcement of the guaranty granted by any German Guarantor under this Agreement, (ii) the enforcement of any payment obligation under this Agreement and (iii) the application of amounts credited to a Cash Collateral Account of a German Guarantor pursuant to Section 5.15(g) ((i), (ii) and (iii) together, the “Enforcement of Claims”) if and to the extent (i) the enforcement proceeds of the Enforcement of Claims are applied in satisfaction of any liability of such German Guarantor‘s direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) (other than the liabilities of any Subsidiary of the German Guarantor) and (ii) such enforcement would cause the amount of the German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) Net Assets, as adjusted pursuant to the following provisions, to fall below the amount of its registered share capital (Stammkapital) (Begründung einer Unterbilanz) or to increase any already existing capital impairment (Vertiefung einer Unterbilanz) or a violation of sections 30 and 31 of the German Limited Liability Company Act (GmbHG), (each such event is hereinafter referred to as a “Capital Impairment”). For the purposes of the calculation of a Capital Impairment, the following balance sheet items shall be adjusted as follows:
(lxv)the amount of any increase of the German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) registered share capital that has been effected after the date of this Agreement (or, if at a later point, the accession thereto by the relevant German Guarantor as a Guarantor) without prior written consent of the Administrative Agent shall be deducted from the German GmbH Guarantor’s (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) registered share capital;
(lxvi)loans provided to the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) the Parent Borrower or any of its Subsidiaries shall be disregarded if and to the extent such loans are subordinated or are considered subordinated by operation of law at least into the rank pursuant to section 39 para 2 of the German Insolvency Code (Insolvenzordnung);
(lxvii)loans or other contractual financial liabilities incurred in violation of the provisions of the Credit Documents shall be disregarded;
(lxviii)assets of the German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner’s) shall be disregarded to the extent profits would be prohibited from distribution pursuant to Section 268 paragraph (8) of the German Commercial Code (Handelsgesetzbuch);
(lxix)the amount of non-distributable assets according to section 253 paragraph (6) or section 272 paragraph (5) of the German Commercial Code (Handelsgesetzbuch) shall not be included in the calculation of Net Assets; and
(lxx)the costs of any Auditor’s Determination (as defined below) shall be taken into account in calculating the Net Assets.
In a situation where a Capital Impairment would occur in relation to a German GmbH Guarantor (or, in the case of a German GmbH & Co. KG Guarantor, its general partner) after satisfaction (in whole
or in part) of the relevant payment demand under this Guaranty or this Credit Agreement or the application of amounts credited to a Cash Collateral Account of a German Guarantor, the German Guarantor shall without undue delay (but no later than eight (8) weeks after occurrence of such situation, unless an extension of such period is granted by the Administrative Agent), to the extent legally permitted, dispose of all assets which are not necessary for its business (nicht betriebsnotwendig) where the relevant assets are shown in the balance sheet of the German Guarantor with a book value significantly lower than the market value of such assets (each such asset a “Relevant Asset”), unless such disposal would not be commercially justifiable. The relevant German Guarantor shall, within ten (10) Business Days upon receipt of a written request from the Administrative Agent relating to any Relevant Asset which is not being sold pursuant to the preceding sentence, provide the Administrative Agent with reasonably detailed information as to why it considers the sale of such Relevant Asset not to be commercially justifiable. In the latter case, the relevant German Guarantor and the Administrative Agent will liaise with each other and the relevant German Guarantor shall use its best efforts to make further attempts to dispose of such Relevant Asset on more beneficial terms and keep the Administrative Agent informed about its progress on a continuous basis.
The limitation pursuant to this Section 7.17(d) shall apply, subject to the following requirements, if following a demand for payment by the Administrative Agent under this Guaranty or the Credit Agreement or a notification of the intention to apply any amounts credited to a Cash Collateral Account of a German Guarantor pursuant to Section 5.15(g), the German Guarantor notifies the Administrative Agent (“Management Notification”) within 15 Business Days upon receipt of the relevant demand that a Capital Impairment would occur (setting out in reasonable detail to what extent a Capital Impairment would occur and providing an estimation of the net proceeds realization along with the calculations / information on which such estimate is based, or other measures undertaken in accordance with the mitigation provisions set out above). If the Management Notification is contested by the Administrative Agent, the German Guarantor undertakes (at its own cost and expense) to arrange for the preparation of a balance sheet by its auditors in order to have such auditors determine whether (and if so, to what extent) any payment under this Guaranty or this Credit Agreement would cause a Capital Impairment (the “Auditor’s Determination”). The Auditor’s Determination shall be prepared, taking into account the adjustments set out above in relation to the calculation of a Capital Impairment, by applying the generally accepted accounting principles applicable from time to time in Germany (Grundsätze ordnungsmäßiger Buchführung) based on the same principles and evaluation methods as consistently applied by the German Guarantor in the preparation of its financial statements, in particular in the preparation of its most recent annual balance sheet, and taking into consideration applicable court rulings of German courts. The German Guarantor shall provide the Auditor’s Determination to the Administrative Agent within twenty- five (25) Business Days from the date on which the Administrative Agent contested the Management Notification in writing. The Auditor’s Determination shall be binding on the German Guarantor and the Secured Parties.
Notwithstanding the above, the provisions of this Section 7.17(d) shall not apply:
(i)if (i) the German Guarantor is party as dominated entity (beherrschtes Unternehmen) of a domination agreement (Beherrschungsvertrag) and/or a profit and loss transfer agreement (Gewinnabführungsvertrag) pursuant to section 30 para 1 sentence 2 of the German Limited Liability Company Act (GmbHG), and (ii) it is to be expected (based on information available to the managing directors of the German Guarantor, interpreted by applying the due care of a prudent businessman (Sorgfalt eines ordentlichen Geschäftsmannes)) that the relevant German Guarantor will be able to recover the annual loss (Jahresfehlbetrag) from the relevant dominating entity pursuant to Section 302 of the German Stock Corporation Act (Aktiengesetz) after the Guaranty or other payment obligation under this Credit Agreement has been enforced against the
German Guarantor or the German Federal Court of Justice has ruled that only limb (a) is required to avoid a violation of sections 30, 31 German Limited Liability Company Act (GmbHG);
(ii)if the German Guarantor has a recourse right (Rückgriffsanspruch) towards its direct or indirect shareholder(s) or partners (upstream) or any entity affiliated to such shareholder or partner (verbundenes Unternehmen) within the meaning of section 15 of the German Stock Corporation Act (Aktiengesetz) (cross-stream) which is fully recoverable (werthaltig) at the time of the Enforcement of Claims; or
(iii)to any amounts borrowed under the Credit Documents to the extent the proceeds of such borrowing are on-lent to the German Guarantor or its Subsidiaries to the extent that any amounts so on-lent are still outstanding at the time the relevant demand is made against the German Guarantor.
(e)Notwithstanding any other provision to the contrary in this Agreement and/or in any other Credit Document, the obligations and liabilities of each Italian Guarantor under Section 7 of this Agreement in respect of the Obligations of any Credit Party which is not a Subsidiary (pursuant to article 2359, paragraph 1, numbers 1 and/or 2, of the Italian Civil Code) of such Italian Guarantor shall not exceed at any time the sum of: (x) the aggregate principal amount of any Loan at any time advanced or made available to the relevant Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359, paragraph 1, numbers 1 and/or 2, of the Italian Civil Code) as an Italian Borrower under this Agreement; and (y) the aggregate principal amount of any intercompany loans or other financial support in any form (such term, for the avoidance of doubt, not including equity contributions), advanced or made available to such Italian Credit Party (or any of its direct or indirect Subsidiaries pursuant to article 2359 of the Italian Civil Code) by any European Credit Party (whether directly or indirectly) on or following the Closing Date, less the aggregate at that time of (z) all amounts paid by such Italian Guarantor under Section 7 of this Agreement and (y) all amounts recovered by the Secured Parties under any other Collateral Document with respect to which such Italian Guarantor acts as security provider of the relevant collateral, provided that, in order to comply with the provisions of Italian law in relation to financial assistance (namely article 2358 and article 2474, as the case may be, of the Italian Civil Code) no Italian Obligor shall be liable as guarantor and/or security provider under this Agreement in relation to (i) any Acquisition Loan; and (ii) the obligations of any European Credit Party under any guarantee given by such European Credit Party under Section 7 of this Agreement in respect of any Acquisition Loan. Notwithstanding any provision to the contrary herein and/or in any Credit Documents, (A) if and to the extent the guarantee of an Italian Guarantor under this Agreement in respect of any Loan would result in a breach of any Italian provisions relating to financial assistance, including articles 2358 and 2474, as applicable, of the Italian Civil Code, applicable to that Italian Guarantor, such Italian Guarantor will be deemed to have no liability hereunder and the Guarantee of such Italian Guarantor in respect thereof shall not be in force and effect ab initio; and (B) in order to comply with the mandatory provisions of Italian law in relation to (x) maximum interest rates (including the Italian Usury Law and article 1815 of the Italian Civil Code), and (y) capitalization of interests (including article 1283 of the Italian Civil Code and article 120 of the Italian Legislative Decree No, 385 of 1 September 1993), the obligations of the Italian Obligor under this Agreement shall not include, and shall not extend to (1) any interest qualifying as usurious pursuant to the Italian Usury Law and (2) any interest on overdue amounts compounded in violation of the provisions set forth by article 1283 of the Italian Civil Code and/or article 120 of the Italian Banking Law, respectively.
(f)Without prejudice to Section 7.17(e), in any event, (i) pursuant to article 1938 of the Italian Civil Code, the maximum amount that an Italian Credit Party may be required to pay in respect of its obligations as Guarantor under this Agreement shall not exceed €4,000,000 (to be considered as a global cap applicable, without duplication, to an Italian Guarantor’s obligations under Section 7 of this Agreement and any security and/or guarantee granted by such Italian Guarantor to secure and/or guarantee the obligations of any entity under any of this Agreement, the Superpriority Term Loan, the Existing 2023 Term Loans, the Existing 2024 Notes, the Existing 2024 Indenture, Existing 2025 Notes, the Existing 2025 Indentures, the Existing Credit Agreement, the New 2L Notes or the New 2L Notes Indenture; provided that such cap will not apply to any own debt obligations of Diebold Nixdorf S.r.l. as borrower under this Agreement); (ii) the aggregate amount of interest guaranteed by an Italian Credit Party in respect of any Loan which is not an Acquisition Loan will be at any time equal to the interest then outstanding in respect of the principal amount of any Loan which is not an Acquisition Loan guaranteed by the Italian Credit Party at that time; and (iii) it is hereby expressly acknowledged and agreed that, notwithstanding any provision to the contrary under any Credit Document, in no event parallel debt or trust provisions under the Credit Documents shall apply to any Collateral or guarantee granted by any Italian Credit Party.
(g)For the purposes of the transparency provisions set forth in the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti) applicable to transactions and banking and financial services issued by Bank of Italy, as following amended and integrated, each Italian Credit Party hereby acknowledges and confirms that: (i) each of them has appointed and has been assisted by its respective legal counsels in connection with the negotiation, preparation and execution of the Credit Documents; and the Credit Documents, and all of their terms and conditions have been specifically negotiated in all their aspects (oggetto di trattativa individuale) between the parties hereof.
(h)In relation to any Swedish Guarantor, its obligations and liabilities under this Agreement, including this Section 7 (including the obligation to indemnify) shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) in force from time to time regulating unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act and financial assistance and other prohibited loans, prohibited security and prohibited guarantees pursuant to Chapter 21, Sections 1 to 3 and 5, and it is understood that the obligations and liabilities of each European Guarantor incorporated in Sweden under this Agreement, including this Section 7 only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.
(i)The Guaranty granted by any Polish Guarantor under this Section 7 will be subject to the following limitations: (i) the guaranty will not apply to any liability to the extent that it would result in breaching Article 189 § 2 of the Polish Commercial Companies Code in the form of reduction of the assets required for the coverage of the total nominal capital or the repayment of capital as prohibited under Article 189 § 2 of the Polish Commercial Companies Code or similar provisions of the Polish Commercial Companies Code; and (ii) to the extent the liability of a Polish Guarantor under this Agreement is considered a financial liability within the meaning of Article 11 § 2 of the Polish Insolvency Act dated 28 February 2003, the liability of a Polish Guarantor shall be limited so that it does not result in the insolvency (niewypłacalność) of a Polish Guarantor within the meaning of Article 11 § 2 of the Polish Insolvency Act or in the insolvency within the meaning of Article 6 section 3 of the Polish Restructuring Act.
(j)The limitation in Section 7.17(i) above will not apply if one or more of the following circumstances occur: (i) any Event of Default is continuing, irrespective of whether such Event of Default occurs before or after a Polish Guarantor becomes insolvent (niewypłacalny) within the meaning of Article 11 paragraph 2 of the Polish Insolvency Act or Article 6 of the Polish Restructuring Act; (ii) the liabilities of a Polish Guarantor (other than those under the Finance Documents) result in its insolvency (niewypłacalność) within the meaning of Article 11 paragraph 2 of the Polish Bankruptcy Law or Article 6 of the Polish Restructuring Act; or (iii) Polish law is amended in such a manner that over-indebtedness (nadmierne zadłużenie) defined in Article 11 paragraph 2 of the Polish Insolvency Act (as in force on the date of this Agreement) no longer gives grounds for declaration of bankruptcy or obliges the representatives of a Polish Guarantor to file for bankruptcy.
(k)Spanish Guarantee Limitations. Any guarantee, security, indemnity, obligation and liability granted, incurred, undertaken, assumed or otherwise agreed by a Spanish Credit Party under any Credit Document shall not extend to any liabilities to the extent that the same would cause a breach of the financial assistance prohibitions. In particular, the obligations undertaken under this Section 7 by any Credit Party incorporated under the laws of Spain (a “Spanish Guarantor”) as a sociedad de responsabilidad limitada shall be deemed not to be undertaken or incurred by a Spanish Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of section 143.2 of the Spanish Companies Law, and, in that case, all provisions of this guarantee and indemnity shall be construed accordingly in the sense that, in no case, can any guarantee and indemnity or Spanish Collateral Documents given by a Spanish Guarantor guarantee or secure repayment of the abovementioned funds. For the purposes of this paragraph, a reference to the “group” of a Spanish Guarantor shall mean such Spanish Guarantor and any other companies constituting a unity of decision. It shall be presumed that there is unity of decision when any of the scenarios set out in section 42.1 of the Spanish Commercial Code is met.
(l)The obligations undertaking under this Section 7 by a Spanish Guarantor incorporated as a sociedad anónima shall be deemed not to be undertaken or incurred by a Spanish Guarantor to the extent that the same would constitute unlawful financial assistance within the meaning of section 150 of the Spanish Companies Law, and, in that case, all provisions of this guarantee and indemnity shall be construed accordingly in the sense that, in no case, can any guarantee or Spanish Collateral Documents given by a Spanish Guarantor guarantee or secure repayment of the abovementioned funds. For the purposes of this paragraph, a reference to a “dominant company” of a Spanish Guarantor shall mean the company which, directly or indirectly, owns the majority of the voting rights of such Spanish Guarantor or that may have a dominant influence on such Spanish Guarantor. It shall be presumed that one company has a dominant influence on another company when: (i) any of the scenarios set out in section 42.1 of the Spanish Commercial Code is met; or (ii) when at least half plus one of the members of the managing body or top managers of the dominant company or of another company controlled by such dominant company.
(m)Belgian Guarantee Limitations: (i) Notwithstanding any provision to the contrary in this Agreement, the liability of any Belgian Guarantor expressed to be assumed in this Section 7 for the obligations of any Credit Party, which is not a direct or indirect Subsidiary of that Belgian Guarantor, will be limited to the greater of: (a) an amount equal to 90 percent of the Net Assets of that Belgian Guarantor calculated on the basis of its latest available annual financial statements at the date of this Agreement or, the date on which it accedes to this Agreement; and
(b) an amount equal to 90 percent of the Net Assets of that Belgian Guarantor at the date of the most recent audited annual financial statements of that Belgian Guarantor available on the date on
which the relevant demand under this Section 7 of this Agreement is made; and (c) the highest amount of On-Lending to that Belgian Guarantor and its Subsidiaries outstanding at any time between the date of this Agreement and the date on which a demand is made against it under this Section 7 (the “Belgian Maximum Guaranteed Amount”). (ii) For the purposes of this Section 7.17(m): “Net Assets” means the net assets (netto actief / actif net) of the relevant Belgian Guarantor as defined in article 5:142 third paragraph, article 6:115 third paragraph or article 7:212 second paragraph (as applicable) of the Belgian Companies and Associations Code (as determined in accordance with the Belgian Companies and Associations Code and Belgian GAAP), a certificate of such amount from the statutory auditor of the relevant Belgian Guarantor (or, if no statutory auditor is appointed or the statutory auditor refuses to issue such certificate, from an accountant appointed upon the Agent’s request by the “Instituut van de Bedrijfsrevisoren/Institut des Réviseurs d’Entreprises”) shall be conclusive, save in the case of manifest error; “On-Lending” means, without double counting, the aggregate amount of all Loans, advances and/or any other proceeds made to any Credit Party and made available by any Credit Party, directly or indirectly, to the relevant Belgian Guarantor or any of its Subsidiaries (in each case, irrespective of whether retained or on-lent by the relevant Belgian Guarantor or its Subsidiary). (iii) For the avoidance of doubt, any guarantee granted by a Belgian Guarantor shall not include any liability to the extent it would constitute unlawful financial assistance, within the meaning of article 5:152, 6:118 and 7:227 of the Belgian Companies and Associations Code (or any equivalent and applicable provisions in any relevant jurisdiction). The limitations set out in this Section 7.17(m) shall apply mutatis mutandis to any Lien granted by the relevant Belgian Guarantor and to any guarantee, undertaking, obligation, indemnity and payment, including (but not limited to) distributions, cash sweeps, credits, loans and set-offs, pursuant to or permitted by the Credit Documents and made by the Belgian Guarantor. For the avoidance of doubt, any payment made by a Belgian Guarantor in respect of any Credit Party, which is not a direct or indirect Subsidiary of that Belgian Guarantor shall reduce the Belgian Maximum Guaranteed Amount.
7.37Certain Releases. The Guaranty of any Guarantor Subsidiary (other than a Guarantor Subsidiary that is a Borrower) shall be automatically released and such Guarantor Subsidiary shall be released from its obligations hereunder if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder (or permitted pursuant to a waiver of or consent to a transaction otherwise prohibited by this Agreement) or is no longer required to be a Guarantor under the terms of the Credit Documents. The Guaranty of the US Obligations of any US Guarantor Subsidiary shall be automatically released and such US Guarantor Subsidiary shall be released from its obligations in respect of such US Obligations if such Person becomes an Excluded Subsidiary as a result of a transaction permitted hereunder (or permitted pursuant to a waiver of or consent to a transaction otherwise prohibited by this Agreement).
7.38Spanish Guarantors Intent. Each Spanish Guarantor expressly confirms and acknowledges that: (a) the amounts due and payable by each Borrower to the Lenders under this Agreement shall constitute liquid, due and payable obligations of such Guarantor (deuda líquida, vencida y exigible); and (b) it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Credit Documents and/or any facility or amount made available under any of the Credit Documents and/or the addition of new borrowers; and any fees, costs and/or expenses associated with any of the foregoing. For such purposes, each Spanish Guarantor undertakes to execute any amendment and/or ratification of this guarantee, including as a Spanish Public Document. The obligations of each Spanish Guarantor under this Agreement vis-a-vis each Lender shall be governed by the terms of this Agreement at any time such that each Spanish Guarantor’s obligations pursuant to this Section 7 shall not be affected in any way by any composition agreement (convenio de acreedores) or a restructuring plan and shall remain exactly within the terms stated herein irrespective of: the fact that a Lender may vote in favour of the approval or
ratification of a composition agreement (convenio de acreedores) as a result of the insolvency of any of the Credit Parties; or the fact that a Lender may vote in favour of the approval or execution of a restructuring plan which may be entered into in connection by any Borrower (in any case, prior to the declaration of insolvency, whether voluntary or mandatory). Each Spanish Guarantor acknowledges that the guarantee provided by it under this Section 7 must be construed as a first demand guarantee (garantía a primer requerimiento) and not as a performance surety (fianza) and, therefore, the benefits of preference (excusión), order (orden) and division (división) of the Spanish Civil Code shall not be applicable.
SECTION 8. EVENTS OF DEFAULT
8.6Events of Default. If any one or more of the following conditions or events shall occur and be continuing:
(n)Failure to Make Payments When Due. Failure by any Borrower to pay (i) when due any installment of principal of any Loan, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; (ii) when due any amount payable to an Issuing Bank in reimbursement of any drawing under an applicable Letter of Credit (it being understood that a deemed Revolving Loan made pursuant to Section 2.3(h) shall satisfy such Reimbursement Obligation); or (iii) any interest on any Loan or any fee or any other amount due hereunder within five Business Days after the date due; or
(o)Default in Other Agreements. (i) Failure of any of Parent Borrower or any Subsidiary to pay when due any principal of or interest on or any other amount payable in respect of one or more items of Indebtedness for borrowed money (other than Indebtedness referred to in Section 8.1(a)) with an aggregate principal amount of $50,000,000 or more, in each case beyond the grace period, if any, provided therefor; (ii) breach or default by any of Parent Borrower or any Subsidiary with respect to any other material term of (A) one or more items of Indebtedness for borrowed money in the individual or aggregate principal amounts referred to in clause (i) above or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness, in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of that Indebtedness (or a trustee on behalf of such holder or holders), to cause, that Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; (iii) an “Event of Default” as defined in the definitive documentation governing any Fixed Asset Facility shall occur; or (iv) any event of default or termination event under any Swap Contract to which Parent Borrower or any Subsidiary is a party which results in the termination or unwinding of such Swap Contract and the Swap Termination Value owed by such Person in respect of such Swap Contract exceeds $50,000,000 in the aggregate for all such Swap Contracts; or
(p)Breach of Certain Covenants. Failure of any Credit Party to perform or comply, or to cause any of its Subsidiaries to perform or comply, with any term or condition contained in
(i) at any time during a Global Liquidity Event Period, Section 5.13 or (ii) at any time, Section 5.3, Section 5.4 (as to the maintenance of existence of Borrowers only), Section 5.11, Section 5.15, Section 5.19 or Section 6; or
(q)Breach of Representations, Etc. Any representation, warranty, certification or other statement made or (pursuant to Section 3.2) deemed made by any Credit Party in any Credit Document or in any statement or certificate at any time given by any Credit Party in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false in any material respect as of the date made or deemed made; or
(r)Other Defaults Under Credit Documents. Any Credit Party shall default in the performance of or compliance with any term contained herein or any of the other Credit Documents, other than any such term referred to in any other Section of this Section 8.1, and such default shall not have been remedied or waived within thirty (30) days (or, in the case of Section 5.12(a), 5.12(c) and 5.12(d), five (5) Business Days) after the earlier of (i) an Authorized Officer of Parent Borrower becoming aware of such default or (ii) receipt by any Borrower of notice from any Agent or any Lender of such default; or
(s)Involuntary Bankruptcy; Appointment of Receiver, Etc. (i) A court of competent jurisdiction shall enter a judgment, decree or order for relief (including any insolvency proceedings within the meaning of the Insolvency Regulation listed or to be listed in Annex A thereto and the suspension of payment, a moratorium, a seizure or realization of a security, liquidation, reorganization, winding-up, dissolution, composition, compromise, arrangement or other relief) in respect of any Borrower or any of their respective Subsidiaries (other than any Immaterial Subsidiary) in an involuntary case under the Bankruptcy Code, or under any other applicable Debtor Relief Laws, which judgment, decree or order is not stayed; or any other similar relief shall be granted under any applicable federal or state law; or (ii) an involuntary case shall be commenced against the Parent Borrower, any other Borrower or any of their respective Subsidiaries (other than any Immaterial Subsidiary) under the Bankruptcy Code or under any other applicable Debtor Relief Laws; or a judgment decree or order of a court having jurisdiction in the premises for the appointment of a receiver, interim receiver, liquidator, examiner, monitor, sequestrator, trustee, monitor, custodian, administrator, compulsory interim manager restructuring official (herstructureringsdeskundige), observer (observator) or other officer having similar powers over any Borrower or such Subsidiaries, or over all or substantially all of its property, shall have been entered; or there shall have occurred the involuntary appointment of an interim receiver, trustee, monitor or other custodian of the Parent Borrower, any such other Borrower or any of such Subsidiaries for all or substantially all of its property; or a warrant of attachment, execution or similar process shall have been issued against substantially all of the property of the Parent Borrower, any such other Borrower or any of such Subsidiaries, and any such event described in this clause (ii) shall continue for sixty (60) days without having been dismissed, bonded or discharged; or (iii) without prejudice to the foregoing, (A) any French Credit Party or any Subsidiary of the Borrowers (other than an Immaterial Subsidiary) which is incorporated in France is subject to a French Insolvency Event (other than initiated by the relevant French Credit Party or its legal representatives); (B) an UK Insolvency Event occurs with respect to any UK Credit Party or any Subsidiary (other than an Immaterial Subsidiary) of the Borrowers which is incorporated in England and Wales; or (C) any Swedish Credit Party or any Subsidiary of the Borrowers (other than an Immaterial Subsidiary) which is incorporated in Sweden is subject to a Swedish Insolvency Event; (D) a Polish Insolvency Event occurs with respect to any Polish Credit Party or any Subsidiary (other than an Immaterial Subsidiary) of the Borrowers which is incorporated in Poland; or
(t)Voluntary Bankruptcy; Appointment of Receiver, Etc. (i) Any Borrower (other than a German Borrower) or any of their respective Subsidiaries (other than any Immaterial Subsidiary or any Subsidiary having its centre of main interests in Germany) shall have a judgment or order for relief (including any insolvency proceedings within the meaning of the Insolvency Regulation listed or to be listed in Annex A thereto and the suspension of payment, a moratorium, a seizure or realization of a security, liquidation, reorganization, winding-up, dissolution, composition, restructuring plan, compromise, arrangement or other relief) entered
with respect to it or shall commence a voluntary case under the Bankruptcy Code or under any other Debtor Relief Laws, or shall consent to the entry of a judgment or order for relief in an involuntary case, or to the conversion of an involuntary case to a voluntary case, under any such law, or shall consent to the appointment of or taking possession by a receiver, interim receiver, trustee, monitor, administrator, compulsory interim manager or other custodian for all or a substantial part of its property; or any such Borrower or any of such Subsidiaries shall make any assignment for the benefit of creditors; or (ii) any Borrower (other than a German Borrower) or any of their respective Subsidiaries (other than any Immaterial Subsidiary or any Subsidiary having its centre of main interests in Germany) shall be unable, or shall fail generally, or shall admit in writing its inability, to pay its debts as such debts become due; or the Board of Directors (or similar governing body) of any such Borrower or any of such Subsidiaries (or any committee thereof) shall adopt any resolution or otherwise authorize any action to approve any of the steps and/or actions referred to herein or in Section 8.1(f); or (iii) with respect to any German Borrower or Subsidiary having its centre of main interests in Germany, such entity is subject to a German Insolvency Event; or (iv) with respect to any Swiss Borrower, or any Subsidiary incorporated in Switzerland and/or having its registered office in Switzerland and/or qualifying as a Swiss resident pursuant to article 9 of the Swiss Withholding Tax Act, such entity is subject to a Swiss Insolvency Event; or (v) without prejudice to the foregoing, with respect to any Dutch Credit Party or Subsidiary of a Borrower (other than an Immaterial Subsidiary) which is incorporated in the Netherlands having its centre of main interests in the Netherlands, such entity files a notice under Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990) or Section
60 of the Social Insurance Financing Act of the Netherlands (Wet Financiering Sociale Verzekeringen) in conjunction with Section 36 of the Tax Collection Act of the Netherlands (Invorderingswet 1990); or (vi) without prejudice to the foregoing, in relation to a Spanish Credit Party, if it is subject to any mandatory obligation to be wound-up (causa obligatoria de disolución) as established in article 363 of the Spanish Companies Law, unless the relevant Spanish Credit Party evidences that it is in a position to implement any of the mechanisms applicable in accordance with the relevant regulation in order to cure that situation within the period legally established for that purpose or it is in likelihood of insolvency or in current or imminent situation in the terms set forth in clauses 2 and 584.2 of the Spanish Insolvency Law.
(u)Judgments and Attachments. Any judgment, writ, order or warrant of attachment (including a beslag) or similar process (i) involving, in the case of any monetary judgment or liability, in an aggregate amount in excess of $50,000,000 or (ii) that, in any other case, could reasonably be expected to have a Material Adverse Effect, in each case, to the extent not adequately covered by either (x) insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage or (y) an enforceable indemnity, to the extent that Parent Borrower or the applicable Subsidiary shall have made a claim for indemnification and the applicable indemnifying party shall not have disputed such claim, shall be entered or filed against Parent Borrower or any of their respective Subsidiaries or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60) days (or in any event later than five (5) days prior to the date of any proposed sale thereunder); or
(v)Employee Benefit Plans. (i) An ERISA Event or Foreign Benefit Plan Event occurs, other than with respect to the matter set forth on Schedule 4.9 hereto, which has resulted or could reasonably be expected to result in liability of any Credit Party in an aggregate amount in excess of $50,000,000; (ii) a Lien (choate or inchoate) arises in respect of a Credit Party or its property in connection with any Pension Plan or Canadian Pension Plan (save for contribution amounts not yet due) or (iii) in relation to the Wincor Nixdorf Defined Benefit Pension Scheme, the Pensions Regulator issues a Financial Support Direction, a Contribution Notice or any other direction, notice, penalty, fine, order or requirement to the Parent Borrower or any other Credit
Party unless the aggregate liability of the Parent Borrower and the other Credit Parties under all Financial Support Directions, Contribution Notices, directions, notices, penalties, fines, orders or requirements is less than $6,000,000; or
(w)Guaranties, Collateral Documents and other Credit Documents. At any time after the execution and delivery thereof:
(lxxi)any of the Guaranty of the Parent Borrower or any other Guarantor (other than any Guarantor Subsidiary that would constitute an Immaterial Subsidiary) for any reason, other than the satisfaction in full of all applicable Obligations, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared to be null and void or the Parent Borrower or any such Guarantor shall repudiate its obligations thereunder;
(lxxii)this Agreement or any Collateral Document that relates to a material portion of the Collateral ceases to be in full force and effect (other than by reason of a release of Collateral in accordance with the terms hereof or thereof or the satisfaction in full of the applicable Obligations in accordance with the terms hereof) or shall be declared null and void;
(lxxiii)the Applicable Collateral Agent shall not have or shall cease to have a valid and perfected Lien in any material portion of the Collateral as required by the Collateral Documents, purported to be covered by the Collateral Documents with the priority required by the relevant Collateral Document; or
(lxxiv)any Credit Party shall contest the validity or enforceability of any Credit Document in writing or deny in writing that it has any further liability, including with respect to future advances by Lenders, under any Credit Document to which it is a party; or
(x)Change of Control. A Change of Control shall occur;
THEN, (1) upon the occurrence of any Event of Default described in Section 8.1(f) or 8.1(g), automatically, and (2) upon the occurrence and continuation of any other Event of Default, at the election of the Administrative Agent or at the request of (or with the consent of) Required Lenders, upon notice to the Parent Borrower by the Administrative Agent, (A) the Revolving Commitments, if any, of each Lender having such Revolving Commitments and the obligation of each Issuing Bank to issue any Letter of Credit shall immediately and automatically terminate; (B) each of the following shall immediately become due and payable, in each case without presentment, demand, protest or other requirements of any kind, all of which are hereby expressly waived by each Credit Party: (I) the unpaid principal amount of and accrued interest on the Loans, (II) an amount equal to 103% of the maximum amount that may at any time be drawn under all Letters of Credit then outstanding (regardless of whether any beneficiary under any such Letter of Credit shall have presented, or shall be entitled at such time to present, the drafts or other documents or certificates required to draw under such Letters of Credit), and (III) all other Obligations (other than Contingent Obligations not yet due and payable); provided the foregoing shall not affect in any way the obligations of Lenders under Section 2.2 or Section 2.3; (C) the Administrative Agent may (and, acting at the direction of the Required Lenders, shall) direct the Applicable Collateral Agent to enforce any and all Liens and security interests created pursuant to Collateral Documents; and
(D) the Administrative Agent shall direct each Borrower to pay (and each Borrower hereby agrees upon receipt of such notice, or upon the occurrence of any Event of Default specified in Sections 8.1(f) and (g)
to pay) to the Administrative Agent 103% of such Borrower’s Reimbursement Obligations then outstanding.
8.7Actions in Respect of Letters of Credit. At any time (i) upon the Revolving Commitment Termination Date or (ii) as may be required by Section 2.13, each applicable Borrower shall pay to the Administrative Agent in immediately available funds at its Principal Office, for deposit in a Cash Collateral Account, (x) in the case of clause (i) above, the amount required so that, after such payment, the aggregate funds on deposit in the Cash Collateral Accounts equals or exceeds 103% of the sum of (A) all applicable outstanding Tranche A Letter of Credit Obligations and (y) in the case of clause
(ii) above, the amount required by Section 2.13. The Administrative Agent may, from time to time after funds are deposited in any Cash Collateral Account, apply funds then held in such Cash Collateral Account to the payment of any amounts, in accordance with Section 2.13 and Section 2.15(h) as shall have become or shall become due and payable by such Borrower to the Issuing Banks or the Lenders in respect of the Letter of Credit Obligations; provided, however, that the foregoing shall be subject to the European Limitations. The Administrative Agent shall promptly give written notice of any such application; provided, however, that the failure to give such written notice shall not invalidate any such application.
8.8[Reserved].
8.9[Reserved].
8.10CAM Exchange.
(y)On the CAM Exchange Date, (i) the Commitments shall automatically and without further act be terminated as provided in Section 8.1, (ii) each Lender shall immediately be deemed to have acquired participations in the Swing Line Loans in an amount equal to such Lender’s Pro Rata share (as in effect immediately prior to the CAM Exchange) of each Swing Line Loan outstanding on such date and shall promptly make payment therefor to the Administrative Agent in accordance with Section 2.2(f), (iii) simultaneously with the automatic conversions pursuant to clause (iv) below, the Lenders shall automatically and without further act (and without regard to the provisions of Section 10.6) be deemed to have exchanged participation interests in the Loans (other than the Swing Line Loans) and participations in Swing Line Loans and Letters of Credit, such that in lieu of the interest of each Lender in each Loan and Letter of Credit in which it shall participate as of such date (including such Lender’s interest in the Obligations of each Borrower in respect of each such Loan and Letter of Credit), such Lender shall hold a participation interest in every one of the Loans (other than the Swing Line Loans), and a participation in every one of the Swing Line Loans and Letters of Credit (including the Obligations of each Borrower in respect of each such Loan), whether or not such Lender shall previously have participated therein, equal to such Lender’s CAM Percentage thereof and (iv) simultaneously with the deemed exchange of participation interests pursuant to clause (iii) above, all outstanding Revolving Loans not denominated in US Dollars shall, automatically and with no further action required, be converted into US Dollars, determined using the exchange rate calculated as of the Business Day immediately preceding the CAM Exchange Date, and on and after such date all such Loans shall constitute Loans payable in US Dollars. Each Lender and each Borrower hereby consents and agrees to the CAM Exchange, and each Lender agrees that the CAM Exchange shall be binding upon its successors and assigns and any Person that acquires a participation in its interests in any Loan or any participation in any Swing Line Loan or Letter of Credit. Each Borrower agrees from time to time to execute and deliver to each Agent all such promissory notes and other instruments and documents as such Agent shall reasonably request to evidence and confirm the respective interests of the Lenders after giving effect to the CAM
Exchange, and each Lender agrees to surrender any promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent against delivery of any promissory notes evidencing its interests in the Loans so executed and delivered; provided that the failure of any Borrower to execute or deliver or of any Lender to accept any such promissory note, instrument or document shall not affect the validity or effectiveness of the CAM Exchange.
(z)As a result of the CAM Exchange, upon and after the CAM Exchange Date, each payment received by any Agent pursuant to any Credit Document in respect of the Obligations shall be distributed to the Lenders pro rata in accordance with their respective CAM Percentages, subject to Section 2.21. Any direct payment received by a Lender on or after the CAM Exchange Date, including by way of setoff, in respect of an Obligation shall be paid over to an Agent for distribution to the Lenders in accordance herewith.
SECTION 9. AGENTS
9.19Authorization and Action.
(aa)Each Lender, on behalf of itself and any of its Affiliates that are Secured Parties and each Issuing Bank hereby irrevocably appoints each entity named as an Agent in this Agreement and its successors and assigns to serve as the administrative agent and collateral agent (as applicable) under the Credit Documents and each Lender and each Issuing Bank authorizes each Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Credit Documents as are delegated to such Agent under such agreements and to exercise such powers as are reasonably incidental thereto. Each Lender, on behalf of itself and any of its Affiliates that are Secured Parties and each Issuing Bank hereby irrevocably authorises the ABL Administrative Agent (and its successors and assigns) to appoint the European Collateral Agent as the collateral agent of the Secured Parties pursuant to the terms of the Intercreditor Agreement (the appointment provisions in this sentence, together with the provisions of Section 9.14 being the “Authority”). In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Lender and each Issuing Bank hereby grants to each Agent any required powers of attorney to execute and enforce any Collateral Document governed by the laws of such jurisdiction on such Lender’s or such Issuing Bank’s behalf. Each Lender and each Issuing Bank exempts each Agent from the restrictions pursuant to Section 181 Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Lender or Issuing Bank. Any Lender and any Issuing Bank which cannot grant such exemption shall notify each Agent accordingly and, upon request of any Agent, either act in accordance with the terms of this Agreement and/or any other Credit Document as required pursuant to this Agreement and/or such other Credit Document or grant a special power of attorney to a party acting on its behalf, in a manner that is not prohibited pursuant to Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and/or any other applicable laws. Without limiting the foregoing, each Lender and each Issuing Bank hereby authorizes each Agent to execute and deliver, and to perform its obligations under, each of the Credit Documents to which such Agent is a party, and to exercise all rights, powers and remedies that each Agent may have under such Credit Documents, expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of the Credit Documents, all the above with express faculties of self- contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación).
(ab)(i) Each Agent shall be entitled to request instructions, or clarification of any instruction, from the Required Lenders as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion, or making requests hereunder, and each Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested and (ii) without limiting the foregoing, the European Collateral Agent shall be entitled to request instructions, or clarification of any instruction, from the Administrative Agent as to whether, and in what manner, it should exercise or refrain from exercising any right, power, authority or discretion, or making requests hereunder, and the European Collateral Agent may refrain from acting unless and until it receives any such instructions or clarification that it has requested.
(ac)Each Agent may refrain from acting in accordance with any instructions of any Lender, group of Lenders or any other Agent until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Credit Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions.
(ad)As to any matters not expressly provided for herein and in the other Credit Documents (including enforcement or collection), no Agent shall be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) upon the written instructions of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, pursuant to the terms in the Credit Documents), and, unless and until revoked in writing, such instructions shall be binding upon each Lender and each Issuing Bank; provided, however, that no Agent shall be required to take any action that (i) in such Agent’s or its counsel’s opinion may lead it to expend its own funds or expose it to liability (financial or otherwise) unless such Agent receives an indemnification or security (which may be greater in extent than that contained in the Credit Document and which may include payment in advance) and is exculpated in a manner satisfactory to it from the Lenders and the Issuing Banks with respect to such action or (ii) is contrary to this Agreement or any other Credit Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that any Agent may seek clarification or direction from the Required Lenders prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Credit Documents, no Agent shall have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Borrower, any other Credit Party, any Subsidiary or any Affiliate of any of the foregoing that is communicated to or obtained by the Person serving as Agent or any of its Affiliates in any capacity. Nothing in this Agreement shall require any Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(ae)In performing its functions and duties hereunder and under the other Credit Documents, each Agent is acting solely on behalf of the Lenders and the Issuing Banks (except in limited circumstances expressly provided for herein relating to the maintenance of the Register), and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(lxxv)no Agent assumes and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Lender, Issuing Bank, any other Secured Party or holder of any other obligation other than as expressly set forth herein and in the other Credit Documents, regardless of whether a Default or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Credit Document with reference to any Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Lender, on behalf of itself and any of its Affiliates that are Secured Parties, and each Issuing Bank agrees that it will not assert any claim against any Agent based on an alleged breach of fiduciary duty by any Agent in connection with this Agreement and/or the transactions contemplated hereby;
(lxxvi)where any Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to a Credit Document expressed to be governed by the laws of England and Wales, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of such Agent to the Secured Parties in its capacity as trustee shall be excluded to the fullest extent permitted by applicable law;
(lxxvii)to the extent that English law is applicable to the duties of any Agent under any of the Credit Documents, Section 1 of the Trustee Act 2000 of the United Kingdom shall not apply to the duties of such Agent in relation to the trusts constituted by that Credit Document; where there are inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 of the United Kingdom and the provisions of this Agreement or such Credit Document, the provisions of this Agreement shall, to the extent permitted by applicable law, prevail and, in the case of any inconsistency with the Trustee Act 2000 of the United Kingdom, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act; and
(lxxviii)nothing in this Agreement or any Credit Document shall require any Agent to account to any Lender for any sum or the profit element of any sum received by any Agent for its own account.
(af)Each Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 9 shall apply to any such sub-agent and to the Related Parties of each Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. No Agent shall be responsible for the negligence or misconduct of any sub agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that such Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
(ag)None of any Co-Syndication Agent, any Co-Documentation Agent nor any Lead Arranger shall have obligations or duties whatsoever in such capacity under this Agreement or any other Credit Document and shall incur no liability hereunder or thereunder in such capacity, but all such persons shall have the benefit of the indemnities provided for hereunder.
(ah)In case of the pendency of any proceeding with respect to any Credit Party under any Federal, state, provincial or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect, each Agent (irrespective of whether the principal of any Loan or any Reimbursement Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether any Agent shall have made any demand on any Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise:
(ai)to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, Reimbursement Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the Issuing Banks and the Agents (including any claim under Sections 2.10, 2.7, 2.18, 2.19, 10.2 and 10.3) allowed in such judicial proceeding; and
(ii) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, interim receiver, assignee, trustee, monitor, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Lender, each Issuing Bank and each other Secured Party to make such payments to each Agent and, in the event that any Agent shall consent to the making of such payments directly to the Lenders, the Issuing Banks or the other Secured Parties, to pay to such Agent any amount due to it, in its capacity as an Agent, under the Credit Documents (including under Sections 10.2 and 10.3). Nothing contained herein shall be deemed to authorize any Agent to authorize or consent to or accept or adopt on behalf of any Lender or Issuing Bank any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or Issuing Bank or to authorize any Agent to vote in respect of the claim of any Lender or Issuing Bank in any such proceeding.
(i)The provisions of this Section 9 are solely for the benefit of the Agents, the Lenders and the Issuing Banks, and, except solely to the extent of the Borrowers’ right to consent pursuant to and subject to the conditions set forth in this Section 9, no Borrower nor any Subsidiary, or any of their respective Affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral and of the Guarantees of the Obligations provided under the Credit Documents, to have agreed to the provisions of this Section 9.
(j)Without limiting the powers of any Agent, for the purposes of holding any hypothec granted pursuant to the laws of the Province of Québec to secure the prompt payment and performance of any and all Obligations by any Credit Party, each of the Secured Parties hereby irrevocably appoints and authorizes each Agent and, to the extent necessary, ratifies the appointment and authorization of each Agent, to act as the hypothecary representative of the present and future Lenders as contemplated under Article 2692 of the Civil Code of Québec (in such capacity, the “Attorney”), and to enter into, to take and to hold on their behalf, and for their benefit, any hypothec, and to exercise such powers and duties that are conferred upon the Attorney under any related deed of hypothec and applicable law. The Attorney shall: (a) have the sole and exclusive right and authority to exercise, except as may be otherwise specifically restricted by the terms hereof, all rights and remedies given to the Attorney pursuant to any such deed of hypothec and applicable law, and (b) benefit from and be subject to all provisions hereof with respect to such Agent mutatis mutandis, including, without limitation, all such provisions with respect to the liability or responsibility to and indemnification by the Secured Parties and the
Credit Parties. Any person who becomes a Secured Party shall, by its execution of an Assignment and Acceptance Agreement, be deemed to have consented to and confirmed the Attorney as the person acting as hypothecary representative holding the aforesaid hypothecs as aforesaid and to have ratified, as of the date it becomes a Secured Party, all actions taken by the Attorney in such capacity. The substitution of such Agent pursuant to the provisions of this Section 9 also constitute the substitution of the Attorney.
(k)With respect to GLAS Americas LLC acting as collateral agent under the terms of this Agreement, if there is any conflict between the provisions of this Section 9 and the terms of the Intercreditor Agreement, except with respect to the Authority the terms of the Intercreditor Agreement shall prevail.
9.20Agent’s Reliance, Limitation of Liability, Etc.
(a)No Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by such party, such Agent or any of its Related Parties under or in connection with this Agreement or the other Credit Documents (x) with the consent of or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believe in good faith to be necessary, under the circumstances as provided in the Credit Documents) or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Lenders for any recitals, statements, representations or warranties made by any Credit Party or any officer thereof contained in this Agreement or any other Credit Document or in any certificate, report, statement or other document referred to or provided for in, or received by such Agent under or in connection with, this Agreement or any other Credit Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Credit Document (including, for the avoidance of doubt, in connection with such Agent’s reliance on any Electronic Signature transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of any Credit Party to perform its obligations hereunder or thereunder.
(b)No Agent shall be deemed to have knowledge of any (i) notice of any of the events or circumstances set forth or described in Section 5.1 unless and until written notice thereof stating that it is a “notice under Section 5.1“ in respect of this Agreement and identifying the specific clause under said Section is given to such Agent by the Parent Borrower, or (ii) notice of any Default or Event of Default unless and until written notice thereof (stating that it is a “notice of Default” or a “notice of an Event of Default”) is given to such Agent by the Parent Borrower, a Lender or the Issuing Bank. Further, no Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Credit Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Credit Document or the occurrence of any Default or Event of Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in Section 3 or elsewhere in any Credit Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to such Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to such Agent or (vi) the creation, perfection or priority of Liens on the Collateral. Notwithstanding anything herein to the contrary, no Agent shall be liable for, or be responsible for any Liabilities, costs or expenses
suffered by any Borrower, any other Credit Party, any Subsidiary, any Lender or the Issuing Bank as a result of, any determination of the Revolving Credit Exposure, any of the component amounts thereof or any portion thereof attributable to each Lender or Issuing Bank, or any exchange rate or Dollar Equivalent. No Agent shall have any duty to monitor the value or rating of any Collateral on an ongoing basis. Other than in respect of legal or arbitration proceedings relating to the perfection, preservation or protection of rights under the Collateral Documents or enforcement of the Collateral or Collateral Documents, no Agent is authorized to act on behalf of a Lender (without first obtaining that Lender’s prior written consent) in any legal or arbitration proceedings relating to this Agreement or any Credit Document;
(c)Without limiting the foregoing, each Agent (i) may treat the payee of any promissory note as its holder until such promissory note has been assigned in accordance with Section 10.6, (ii) may rely on the Register to the extent set forth in Section 10.6(b), (iii) may consult with legal counsel (including counsel to the Borrowers), independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (iv) makes no warranty or representation to any Lender or Issuing Bank and shall not be responsible to any Lender or Issuing Bank for any statements, warranties or representations made by or on behalf of any Credit Party in connection with this Agreement or any other Credit Document, (v) in determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an Issuing Bank, may presume that such condition is satisfactory to such Lender or Issuing Bank unless such Agent shall have received notice to the contrary from such Lender or Issuing Bank sufficiently in advance of the making of such Loan or the issuance of such Letter of Credit and
(vi) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Credit Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Credit Documents for being the maker thereof).
(d)Each Lender will be responsible for carrying out any Spanish formalities required under Spanish law pursuant to the terms of this Agreement or the Spanish Collateral Agreements.
9.21Posting of Communications.
(e)The Borrowers agree that each Agent may, but shall not be obligated to, make any Communications available to the Lenders and the Issuing Bank by posting the Communications on IntraLinks™, DebtDomain, SyndTrak, ClearPar or any other electronic system chosen by such Agent in its reasonable discretion to be its electronic transmission system (the “Approved Electronic Platform”).
(f)Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a per-deal authorization method whereby each user may access the Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders, the Issuing Bank and each Borrower acknowledges and agrees that the distribution of material through an electronic medium is not necessarily secure, that no Agent is responsible for approving or vetting the representatives or
contacts of any Lender that are added to the Approved Electronic Platform, and that there may be confidentiality and other risks associated with such distribution. Each of the Lenders, the Issuing Bank and each Borrower hereby approves distribution of the Communications through the Approved Electronic Platform and understands and assumes the risks of such distribution, other than risks arising from the gross negligence or willful misconduct of any of the Applicable Parties (as defined below) (as determined by a court of competent jurisdiction by a final and nonappealable judgment).
(g)THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE APPLICABLE PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS, OR THE ADEQUACY OF THE APPROVED ELECTRONIC PLATFORM AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS OR OMISSIONS IN THE APPROVED ELECTRONIC PLATFORM AND THE COMMUNICATIONS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY THE APPLICABLE PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL ANY AGENT, ANY LEAD ARRANGER, ANY CO-DOCUMENTATION AGENT, ANY CO-SYNDICATION AGENT OR ANY OF THEIR RESPECTIVE RELATED PARTIES (COLLECTIVELY, “APPLICABLE PARTIES”) HAVE ANY LIABILITY TO ANY CREDIT PARTY, ANY LENDER, ANY ISSUING BANK OR ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY’S OR ANY AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET OR THE APPROVED ELECTRONIC PLATFORM, OTHER THAN DIRECT ACTUAL DAMAGES ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY APPLICABLE PARTY (AS DETERMINED BY A COURT OF COMPETENT JURISDICTION BY A FINAL NON-APPEALABLE JUDGMENT).
“Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any Credit Party pursuant to any Credit Document or the transactions contemplated therein which is distributed by any Agent, any Lender or Issuing Bank by means of electronic communications pursuant to this Section, including through an Approved Electronic Platform.
(h)Each Lender and Issuing Bank agrees that notice to it (as provided in the next sentence) specifying that Communications have been posted to the Approved Electronic Platform shall constitute effective delivery of the Communications to such Lender for purposes of the Credit Documents. Each Lender and Issuing Bank agrees (i) to notify each applicable Agent in writing (which could be in the form of electronic communication) from time to time of such Lender’s or Issuing Bank’s (as applicable) email address to which the foregoing notice may be sent by electronic transmission and (ii) that the foregoing notice may be sent to such email address.
(i)Each of the Lenders, Issuing Bank and each Borrower agrees that each Agent may, but (except as may be required by applicable law) shall not be obligated to, store the
Communications on the Approved Electronic Platform in accordance with such Agent’s generally applicable document retention procedures and policies.
(j)Nothing herein shall prejudice the right of any Agent, any Lender or Issuing Bank to give any notice or other communication pursuant to any Credit Document in any other manner specified in such Credit Document.
9.22Agent Individually. With respect to its Revolving Commitment, Loans (including Swing Line Loans) and Letters of Credit, each Person serving as Agent shall have and may exercise the same rights and powers hereunder and is subject to the same obligations and liabilities as and to the extent set forth herein for any other Lender or Issuing Bank, as the case may be. The terms “Issuing Bank”, “Lenders”, “Required Lenders” and any similar terms shall, unless the context clearly otherwise indicates, include each Agent in its individual capacity as a Lender, Issuing Bank or as one of the Required Lenders, as applicable. Each Person serving as Agent and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of banking, trust or other business with, any Credit Party, any Subsidiary or any Affiliate of any of the foregoing as if such Person was not acting as Agent and without any duty to account therefor to the Lenders or the Issuing Banks.
9.23Successor Agent.
(k)Any Agent may resign at any time by giving 30 days’ prior written notice thereof to the Lenders, the Issuing Bank and the Parent Borrower, whether or not a successor Agent has been appointed. Upon any such resignation, (i) such Agent may appoint one of its Affiliates as a successor Agent and (ii) if such Agent has not appointed one of its Affiliates as a successor Agent pursuant to clause (i) above, the Required Lenders shall have the right to appoint a successor Agent. If no successor Agent shall have been so appointed by the Required Lenders, and shall have accepted such appointment, within 30 days after the retiring Agent’s giving of notice of resignation, then the retiring Agent may, on behalf of the Lenders and the Issuing Bank, appoint a successor Agent, which shall be a bank with an office in New York, New York or an Affiliate of any such bank. In either case, (other than if such Agent appoints one of its Affiliates as a successor Agent pursuant to clause (i) above), such appointment shall be subject to the prior written approval of the Parent Borrower (which approval may not be unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as Agent by a successor Agent, such successor Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring Agent. Upon the acceptance of appointment as Agent by a successor Agent, the retiring Agent shall be discharged from its duties and obligations under this Agreement and the other Credit Documents. Prior to any retiring Agent’s resignation hereunder as Agent, the retiring Agent shall take such action as may be reasonably necessary to assign to the successor Agent its rights as Agent under the Credit Documents.
(l)Notwithstanding paragraph (a) of this Section, in the event no successor Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its intent to resign, the retiring Agent may give notice of the effectiveness of its resignation to the Lenders, the Issuing Bank and the Borrowers, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents; provided that, solely for purposes of maintaining any security interest granted to such Agent under any Collateral Document for the benefit of the Secured Parties, such retiring Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured
Parties and continue to be entitled to the rights set forth in such Collateral Document and Credit Document, and, in the case of any Collateral in the possession of such Agent, shall continue to hold such Collateral, in each case until such time as a successor Agent is appointed and accepts such appointment in accordance with this Section (it being understood and agreed that the retiring Agent shall have no duty or obligation to take any further action under any Collateral Document, including any action required to maintain the perfection of any such security interest), and (ii) the Required Lenders shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring Agent; provided that (A) all payments required to be made hereunder or under any other Credit Document to such Agent for the account of any Person other than such Agent shall be made directly to such Person and (B) all notices and other communications required or contemplated to be given or made to such Agent shall directly be given or made to each Lender and Issuing Bank. Following the effectiveness of such Agent’s resignation from its capacity as such, the provisions of this Section 9, Section 2.17(d) and Section 9.2, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Credit Document, shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as Agent and in respect of the matters referred to in the proviso under clause (a) above.
(m)Notwithstanding paragraphs (a) and (b) of this Section, no successor Agent shall be incorporated, domiciled or established in a Non-Cooperative Jurisdiction or a Belgian Non- Cooperative Jurisdiction without the prior consent of the Parent Borrower and the Lenders (it being understood, for the avoidance of doubt, that this clause (c) does not limit any Agent’s right to resign).
(n)Unless otherwise agreed in writing by each Agent, Issuing Bank or Swing Line Lender (in each case, as to itself), on the Revolving Commitment Termination Date, the obligations under the Credit Documents of such Agent, Issuing Bank and Swing Line Lender shall terminate, notwithstanding an election of any Lender to extend the Revolving Commitment Termination Date pursuant to Section 2.23.
9.24Acknowledgements of Lenders and Issuing Bank.
(o)Each Lender and each Issuing Bank represents and warrants that (i) the Credit Documents set forth the terms of a commercial lending facility, (ii) it is engaged in making, acquiring or holding commercial loans and in providing other facilities set forth herein as may be applicable to such Lender or Issuing Bank, in each case in the ordinary course of business, and not for the purpose of purchasing, acquiring or holding any other type of financial instrument (and each Lender and each Issuing Bank agrees not to assert a claim in contravention of the foregoing), (iii) it has, independently and without reliance upon any Agent, any Lead Arranger, any Co-Syndication Agent, any Co-Documentation Agent, or any other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder and (iv) it is sophisticated with respect to decisions to make, acquire and/or hold commercial loans and to provide other facilities set forth herein, as may be applicable to such Lender or such Issuing Bank, and either it, or the Person exercising discretion in making its decision to make, acquire and/or hold such commercial loans or to provide such other facilities, is experienced in making, acquiring or holding such commercial loans or providing such other facilities. Each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon any Agent, any Lead Arranger, any Co-Syndication Agent, any Co-Documentation Agent, or any
other Lender or Issuing Bank, or any of the Related Parties of any of the foregoing, and based on such documents and information (which may contain material, non-public information within the meaning of the United States securities laws concerning the Borrowers and their Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder or thereunder.
(p)Each Lender, by delivering its signature page to this Agreement on the Closing Date, or delivering its signature page to an Assignment Agreement or any other Credit Document pursuant to which it shall become a Lender hereunder, shall be deemed to have acknowledged receipt of, and consented to and approved, each Credit Document and each other document required to be delivered to, or be approved by or satisfactory to, any Agent or the Lenders on the Closing Date or the effective date of any such Assignment Agreement or any other Credit Document pursuant to which it shall have become a Lender hereunder.
(q)Each Lender hereby agrees that (i) it has requested a copy of each Report prepared by or on behalf of any Agent; (ii) each Agent (A) makes no representation or warranty, express or implied, as to the completeness or accuracy of any Report or any of the information contained therein or any inaccuracy or omission contained in or relating to a Report and (B) shall not be liable for any information contained in any Report; (iii) the Reports are not comprehensive audits or examinations, and that any Person performing any field examination will inspect only specific information regarding the Credit Parties and will rely significantly upon the Credit Parties’ books and records, as well as on representations of the Credit Parties’ personnel and that no Agent undertakes any obligation to update, correct or supplement the Reports; (iv) it will keep all Reports confidential and strictly for its internal use, not share the Report with any Credit Party or any other Person except as otherwise permitted pursuant to this Agreement; and (v) without limiting the generality of any other indemnification provision contained in this Agreement, (A) it will hold each Agent and any such other Person preparing a Report harmless from any action the indemnifying Lender may take or conclusion the indemnifying Lender may reach or draw from any Report in connection with any extension of credit that the indemnifying Lender has made or may make to a Borrower, or the indemnifying Lender’s participation in, or the indemnifying Lender’s purchase of, a Loan or Loans; and (B) it will pay and protect, and indemnify, defend, and hold each Agent and any such other Person preparing a Report harmless from and against, the claims, actions, proceedings, damages, costs, expenses, and other amounts (including reasonable attorneys’ fees) incurred by such Agent or any such other Person as the direct or indirect result of any third parties who might obtain all or part of any Report through the indemnifying Lender.
(r)
(lxxix)Each Lender (including, for the avoidance of doubt, each Issuing Bank) hereby agrees that (x) if any Agent notifies such Lender that such Agent has determined in its sole discretion that any funds received by such Lender from such Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender), and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent at the greater of the NYFRB Rate and a rate determined by such
Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to such Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by such Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of any Agent to any Lender under this Section 9.6(d) shall be conclusive, absent manifest error.
(lxxx)Each Lender (including, for the avoidance of doubt, each Issuing Bank) hereby further agrees that if it receives a Payment from any Agent or any of its Affiliates
(x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by such Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify such Agent of such occurrence and, upon demand from such Agent, it shall promptly, but in no event later than one (1) Business Day thereafter, return to such Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to such Agent at the greater of the NYFRB Rate and a rate determined by such Agent in accordance with banking industry rules on interbank compensation from time to time in effect.
(lxxxi)Each Borrower and each other Credit Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) are not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the applicable Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by any Borrower or any other Credit Party except, in each case, to the extent such erroneous Payment is, and solely with respect to the amount of such erroneous Payment that is, comprised of funds received by the Administrative Agent from a Borrower.
(lxxxii)Each party’s obligations under this Section 9.6(d) shall survive the resignation or replacement of any Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Revolving Commitments or the repayment, satisfaction or discharge of all Obligations under any Credit Document.
9.25Collateral Matters.
(s)Except with respect to the exercise of setoff rights in accordance with Section
10.4 or with respect to a Secured Party’s right to file a proof of claim in an insolvency proceeding, no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce any Guarantee of the Obligations, it being understood and agreed that all powers, rights and remedies under the Credit Documents may be exercised solely by the Agents on behalf of the Secured Parties in accordance with the terms thereof. In its capacity, each Agent is a “representative” of the Secured Parties within the meaning of the term “secured party” as defined in the UCC, the PPSA or other applicable law. In the event that any Collateral is hereafter pledged by any Person as collateral security for the Obligations, each Agent is hereby authorized,
and hereby granted a power of attorney, to execute and deliver on behalf of the Secured Parties any Credit Documents necessary or appropriate to grant and perfect a Lien on such Collateral in favor of such Agent on behalf of the Secured Parties.
(t)In furtherance of the foregoing and not in limitation thereof, no arrangements in respect of Cash Management Documents the obligations under which constitute Obligations, no Bi-lateral LC/WC Agreement the obligations under which constitute Obligations, and no Hedge Agreement the obligations under which constitute Obligations, will create (or be deemed to create) in favor of any Secured Party that is a party thereto any rights in connection with the management or release of any Collateral or of the obligations of any Credit Party under any Credit Document. By accepting the benefits of the Collateral, each Secured Party that is a party to any such arrangement in respect of Cash Management Documents, Bi-lateral LC/WC Agreements or Hedge Agreements, as applicable, shall be deemed to have appointed each Agent to serve as administrative agent and collateral agent under the Credit Documents and agreed to be bound by the Credit Documents as a Secured Party thereunder, subject to the limitations set forth in this paragraph.
(u)The Secured Parties irrevocably authorize each Agent, at its option and in its discretion, to subordinate any Lien on any property granted to or held by such Agent under any Credit Document to the holder of any Lien on such property that is permitted by Section 6.5. No Agent shall be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of any Agent’s Lien thereon or any certificate prepared by any Credit Party in connection therewith, nor shall any Agent be responsible or liable to the Lenders or any other Secured Party for any failure to monitor or maintain any portion of the Collateral.
(v)No Agent shall be responsible for any unsuitability, inadequacy, expiration or unfitness of any security interest created pursuant to any Credit Document pertaining to this matter nor shall it be obligated to make any investigation into, and shall be entitled to assume, the adequacy and fitness of any security interest created hereunder or pursuant to any other Credit Document pertaining to this matter.
(w)Beyond the exercise of reasonable care in the custody thereof, no Agent shall have any duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto and no Agent shall be responsible for filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Each Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords similar collateral and shall not be liable or responsible for any loss or diminution in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee.
9.26Credit Bidding. The Secured Parties hereby irrevocably authorize each Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including by accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code or any other applicable Debtor Relief Law, including under Sections 363, 1123 or 1129 of the Bankruptcy Code, or any similar or equivalent provisions of any Debtor Relief
Laws to which a Credit Party is subject, or (b) at any other sale, foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) such Agent (whether by judicial action or otherwise) in accordance with any applicable law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid by such Agent at the direction of the Required Lenders on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that shall vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) for the asset or assets so purchased (or for the equity interests or debt instruments of the acquisition vehicle or vehicles that are issued in connection with such purchase). In connection with any such bid (i) each Agent shall be authorized to form one or more acquisition vehicles and to assign any successful credit bid to such acquisition vehicle or vehicles, (ii) each of the Secured Parties’ ratable interests in the Obligations which were credit bid shall be deemed without any further action under this Agreement to be assigned to such vehicle or vehicles for the purpose of closing such sale, (iii) each Agent shall be authorized to adopt documents providing for the governance of the acquisition vehicle or vehicles (provided that any actions by such Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or equity interests thereof, shall be governed, directly or indirectly, by, and the governing documents shall provide for, control by the vote of the Required Lenders or their permitted assignees under the terms of this Agreement or the governing documents of the applicable acquisition vehicle or vehicles, as the case may be, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in Section 10.5 of this Agreement), (iv) each Agent on behalf of such acquisition vehicle or vehicles shall be authorized to issue to each of the Secured Parties, ratably on account of the relevant Obligations which were credit bid, interests, whether as equity, partnership interests, limited partnership interests or membership interests, in any such acquisition vehicle and/or debt instruments issued by such acquisition vehicle, all without the need for any Secured Party or acquisition vehicle to take any further action, and (v) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of Obligations credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Secured Parties pro rata with their original interest in such Obligations and the equity interests and/or debt instruments issued by any acquisition vehicle on account of such Obligations shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action. Notwithstanding that the ratable portion of the Obligations of each Secured Party are deemed assigned to the acquisition vehicle or vehicles as set forth in clause (ii) above, each Secured Party shall execute such documents and provide such information regarding the Secured Party (and/or any designee of the Secured Party which will receive interests in or debt instruments issued by such acquisition vehicle) as any Agent may reasonably request in connection with the formation of any acquisition vehicle, the formulation or submission of any credit bid or the consummation of the transactions contemplated by such credit bid.
9.27Certain ERISA Matters.
(x)Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, each Agent, and each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Borrower or any other Credit Party, that at least one of the following is and will be true:
(lxxxiii)such Lender is not using “plan assets” (within the meaning of the Plan Asset Regulations) of one or more Benefit Plans in connection with the Loans, the Letters of Credit or the Revolving Commitments,
(lxxxiv)the transaction exemption set forth in one or more PTEs, such as PTE 84-
14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to, and all of the conditions of such exemption are and continue to be satisfied in connection with, such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Revolving Commitments and this Agreement, or
(lxxxv)such other representation, warranty and covenant as may be agreed in writing between any Agent, in its sole discretion, and such Lender.
(y)In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with respect to a Lender or such Lender has provided another representation, warranty and covenant as provided in sub-clause (iii) in the immediately preceding clause (a), such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, each Agent, and each Lead Arranger and their respective Affiliates, and not, for the avoidance of doubt, to or for the benefit of any Borrower or any other Credit Party, that none of any Agent, any Lead Arranger, any Co- Syndication Agent, any Co-Documentation Agent, or any of their respective Affiliates is a fiduciary with respect to the Collateral or the assets of such Lender (including in connection with the reservation or exercise of any rights by any Agent under this Agreement, any Credit Document or any documents related to hereto or thereto).
(z)Each Agent and each Lead Arranger, Co-Syndication Agent and Co- Documentation Agent hereby informs the Lenders that each such Person is not undertaking to provide investment advice or to give advice in a fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate thereof (i) may receive interest or other payments with respect to the Loans, the Letters of Credit, the Revolving Commitments, this Agreement and any other Credit Documents, (ii) may recognize a gain if it extended the Loans, the Letters of Credit or the Revolving Commitments for an amount less than the amount being paid for an interest in the Loans, the Letters of Credit or the Revolving Commitments by such Lender or (iii) may receive fees or other payments in connection with the transactions contemplated hereby, the Credit Documents or otherwise, including structuring fees, commitment fees, arrangement fees, facility fees, upfront fees, underwriting fees, ticking fees, agency fees, administrative agent or collateral agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or alternate transaction fees, amendment fees, processing fees, term out premiums, banker’s acceptance fees, breakage or other early termination fees or fees similar to the foregoing.
9.28Flood Laws. JPMorgan has adopted internal policies and procedures that address requirements placed on federally regulated lenders under the National Flood Insurance Reform Act of 1994 and related legislation (the “Flood Laws”). JPMorgan, as administrative agent or collateral agent on a syndicated facility, will post on the applicable electronic platform (or otherwise distribute to each Lender in the syndicate) documents that it receives in connection with the Flood Laws. However, JPMorgan reminds each Lender and Participant in the facility that, pursuant to the Flood Laws, each
federally regulated Lender (whether acting as a Lender or Participant in the facility) is responsible for assuring its own compliance with the flood insurance requirements.
9.29Right to Indemnity. Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify each Agent and each of its Affiliates, and each of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents and sub-agents, to the extent that such Agent shall not have been reimbursed by any Credit Party (but without limiting such Credit Party’s reimbursement obligations hereunder), for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including fees and disbursements of financial and legal advisors) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against such Agent or any of its Affiliates, or any of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents or sub-agents, in exercising its powers, rights and remedies or performing its duties hereunder or under the other Credit Documents or otherwise in its capacity as such Agent in any way relating to or arising out of this Agreement or the other Credit Documents; provided no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from such Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction. If any indemnity furnished to any Agent for any purpose shall, in the opinion of such Agent, be insufficient or become impaired, such Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided in no event shall this sentence require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Lender’s Pro Rata Share thereof; and provided further this sentence shall not be deemed to require any Lender to indemnify any Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. Without limiting the foregoing, each Lender agrees to reimburse the Agents promptly upon demand for its ratable share of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the Agents in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Credit Documents, to the extent that the Agents are not reimbursed for such expenses by any Borrower or another Credit Party. Amounts payable pursuant to this Section 9.11 shall be payable on demand.
9.30[Reserved].
9.31French Collateral Documents. The Secured Parties hereby irrevocably appoint the European Collateral Agent as French collateral agent to create, register, manage and enforce on their behalf (étendue de ses pouvoirs), under the denomination of Agent des Sûretés (qualité), the security interests constituted by the French Collateral Documents of the French Credit Parties in accordance with Article 2488-6 et.seq. of the French Civil Code (objet de sa mission), as amended from time to time on the terms of the relevant Credit Documents and French Collateral Documents, and until the discharge date of the relevant Credit Documents or French Collateral Documents (durée de sa mission), and the European Collateral Agent accepts that appointment.
9.32Italian Law Credit Documents. In relation to the Credit Documents governed by Italian law, each Lender, on behalf of itself and any of its Affiliates that are Secured Parties and each Issuing Bank irrevocably (i) appoints GLAS Americas LLC as collateral agent (the “Collateral Agent”) to be its agent (mandatario con rappresentanza) for the purpose of executing on behalf of itself and any of its Affiliates that are Secured Parties any Credit Document which is expressed to be governed by Italian law;
(ii) grants the Collateral Agent the powers to negotiate and approve the terms and conditions of such Credit Documents which are expressed to be governed by Italian law, execute any other agreement or
instruments, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, confirmation, extension, enforcement and release, in whole or in part, of the security created thereunder, in each case in the name and on behalf of it and its Affiliates that are Secured Parties and each Issuing Bank, (iii) consents that the Collateral Agent may act as its agent (mandatario con rappresentanza) in all cases of conflict of interest and self-dealing, in accordance with Article 1394 and execute each Credit Documents expressed to be executed by Italian law and executed by the Collateral Agent on its behalf including to execute any document with itself (contratto con se stesso) in accordance with Article 1395 of the Italian Civil Code, and (iv) consents to the possibility for the Collateral Agent to delegate and sub-delegate any of its powers under this clause including by appointing third parties agents and/or representatives.
9.33[Reserved].
9.34Belgian Priority of Ranking. The persons who become a Lender after the date of this Agreement expressly waive any priority of ranking they may have in have in connection with the Credit Documents pursuant to the Belgian Act of 3 August 2012 on various measures to facilitate the mobilisation of receivables in the financial sector (Wet van 3 augustus 2012 betreffende diverse maatregelen ter vergemakkelijking van de mobilisering van schuldvorderingen in de financiële sector/ Loi du 3 août 2012 relative à des mesures diverses pour faciliter la mobilisation de créances dans le secteur financier).
9.35[Reserved].
9.36[Reserved].
SECTION 10. MISCELLANEOUS
10.32Notices.
(a)Notices Generally. Any notice or other communication herein required or permitted to be given to a Credit Party, any Agent, any Swing Line Lender, any Lender, or any Issuing Bank, shall be sent to such Person’s address as set forth on Appendix B or in the other relevant Credit Document, and in the case of any Lender, as may be otherwise indicated to the Administrative Agent in writing. Except as otherwise set forth in paragraph (b) below, each notice hereunder shall be in writing and may be personally served, telexed, sent by telefacsimile, United States mail or courier service or electronic mail and shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof, upon receipt of telefacsimile, telex or electronic mail, or three Business Days after depositing it in the United States mail with postage prepaid and properly addressed.
(b)Electronic Communications. Notwithstanding clause (a) above (unless the Administrative Agent requests that the provisions of clause (a) above be followed) and any other provision in this Agreement or any other Credit Document providing for the delivery of any Approved Electronic Communication by any other means the Credit Parties shall deliver all Approved Electronic Communications to the Administrative Agent or other applicable Agent by properly transmitting such Approved Electronic Communications in an electronic/soft medium in a format acceptable to the Administrative Agent at such electronic mail address (or similar means of electronic delivery) as the Administrative Agent may notify the Borrowers. Nothing in this clause (b) shall prejudice the right of any Agent or any Lender or Issuing Bank to deliver any Approved Electronic Communication to any Credit Party in any manner authorized in this Agreement or to request that any Borrower effect delivery in such manner. Notices and other
communications delivered by posting to an Approved Electronic Platform, an Internet website or a similar telecommunication device requiring that a user have prior access to such Approved Electronic Platform, website or other device (to the extent permitted by Section 9.3 to be delivered thereunder) shall be effective when such notice or other communication shall have been made generally available on such Approved Electronic Platform, Internet website or similar device to the class of Person being notified (regardless of whether any such Person must accomplish, and whether or not any such Person shall have accomplished, any action prior to obtaining access to such items, including registration, disclosure of contact information, compliance with a standard user agreement or undertaking a duty of confidentiality) and such Person has been notified that such communication has been posted to the Approved Electronic Platform.
10.33Expenses.
(a)From and after the Closing Date, the Parent Borrower agrees promptly following of receipt of a reasonably detailed written invoice therefor, to pay or reimburse each Agent for, all of each Agent’s reasonable out-of-pocket audit, legal (including court clerk fees (procuradores), court, notarial, registration), appraisal, translation, valuation, filing, document duplication and reproduction and investigation expenses and for all other reasonable and documented out-of- pocket costs and expenses of every type and nature (including the reasonable fees, expenses and disbursements of (v) one primary counsel to the Administrative Agent and the Collateral Agent,
(w) not more than one counsel to the Admninistrative Agent and the Collateral Agent in each appropriate jurisdiction or specialty (as reasonably determined by the Administrative Agent), (x) one primary counsel to the European Collateral Agent, (y) not more than one counsel to the European Collateral Agent in each appropriate jurisdiction or specialty (as reasonably determined by the European Collateral Agent) and (z) internal per diem field examination costs, the reasonable fees and expenses of appraisers, auditors, insurance advisors, environmental advisors, accountants, and consultants advising the Agents, reasonable expenses incurred in connection with due diligence and travel, courier, reproduction, printing and delivery expenses) incurred by any Agent in connection with any of the following: (i) the Administrative Agent’s audit and investigation of Parent Borrower, the Borrowers and the Subsidiaries in connection with the preparation, negotiation or execution of any Credit Document (subject to the limitations set forth herein) or the Administrative Agent’s periodic audits, in accordance with the terms of the Credit Documents, of any Borrower or any of the Subsidiaries, as the case may be, (ii) the preparation, negotiation, execution or interpretation of this Agreement, any Credit Document, or the making of the Credit Extensions hereunder, (iii) the creation, perfection or protection of the Liens under any Credit Document (including any reasonable and documented fees, disbursements and expenses for local counsel in appropriate jurisdictions), (iv) the ongoing administration of this Agreement and the Credit Extensions, including consultation with attorneys in connection therewith and with respect to the rights and responsibilities of the Agents hereunder and under the other Credit Documents, (v) the protection, collection or enforcement of any Obligation or the enforcement of any Credit Document, (vi) the commencement, defense or intervention in any court proceeding relating in any way to the Obligations, any Credit Party, any of the Subsidiaries, the Cash Management Documents, the Bi-lateral LC/WC Agreements, the Hedge Agreements, this Agreement or any other Credit Document, (vii) the response to, and preparation for, any subpoena or request for document production with which any Agent is served or deposition or other proceeding in which any Agent is called to testify, in each case, relating in any way to the Obligations, any Credit Party, any of the Subsidiaries, the Cash Management Documents, the Bi- lateral LC/WC Agreements, the Hedge Agreements, this Agreement or any other Credit Document or (viii) any amendment, consent, waiver, assignment, restatement, or supplement to any Credit Document or the preparation, negotiation and execution of the same. From and after
the Closing Date, the Parent Borrower agrees promptly following receipt of a reasonably detailed written invoice therefor, to pay or reimburse each Issuing Bank for all reasonable and documented out-of-pocket expenses incurred by such Issuing Bank in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder.
(b)The Parent Borrower further agrees to pay or reimburse each Agent and each of the Lenders and Issuing Banks promptly following receipt of a reasonably detailed written invoice therefor for all out-of-pocket costs and expenses, including reasonable attorneys’ fees (including costs of settlement) (which shall be limited to the reasonable attorneys’ fees of (v) one primary counsel to the Administrative Agent and Collateral Agent, (w) one primary counsel to the European Collateral Agent, (x) one primary counsel to the Lenders, (y) special counsel to the Administrative Agent, the Collateral Agent, the Lenders and the Issuing Banks in each appropriate jurisdiction or specialty (as reasonably determined by the Administrative Agent), and if the interests of any Lender, any Issuing Bank or any group of Lenders or Issuing Banks (other than all the Lenders and Issuing Banks) are distinctly or disproportionately affected, one additional counsel for each such Lender or group of Lenders and (z) special counsel to the European Collateral Agent in each appropriate jurisdiction or specialty (as reasonably determined by the European Collateral Agent)), incurred by the Agents, such Lenders or such Issuing Banks in connection with any of the following: (i) in enforcing any Credit Document or Obligation or any security therefor or exercising or enforcing any other right or remedy available by reason of an Event of Default, (ii) in connection with any refinancing or restructuring of the credit arrangements provided hereunder in the nature of a “work-out” or in any insolvency or bankruptcy proceeding, (iii) in commencing, defending or intervening in any litigation or in filing a petition, complaint, answer, motion or other pleadings in any legal proceeding relating to the Obligations, any Credit Party, any of the Subsidiaries and related to or arising out of the transactions contemplated hereby or by any other Credit Document, any related agreement, any Cash Management Document, any Bi-lateral LC/WC Agreement or any Hedge Agreement or (iv) in taking any other action in or with respect to any suit or proceeding (bankruptcy or otherwise) described in clause (i), (ii) or (iii) above.
(c)Notwithstanding anything in this Section 10.2 to the contrary, funds received from or held by any European Credit Party shall be applied subject to the European Limitations.
10.34Indemnity.
(a)In addition to the payment of expenses pursuant to Section 10.2, each Credit Party agrees to defend (subject to Indemnitees’ selection of counsel), indemnify, pay and hold harmless, each Agent, each Issuing Bank and each Lender, and each Affiliate of the foregoing, and each of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents and sub-agents (each, an “Indemnitee”), from and against any and all Indemnified Liabilities; provided, no Credit Party shall have any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the extent a court of competent jurisdiction determines in a final, non-appealable judgment that such Indemnified Liabilities have been incurred by reason of the gross negligence or willful misconduct by such Indemnitee or its officers, partners, directors, trustees, agents, sub-agents or Affiliates. To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in this Section 10.3 may be unenforceable in whole or in part because they are violative of any law or public policy, the applicable Credit Party shall contribute the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by Indemnitees or any of them. The Swiss Borrower shall not be liable for any other Credit Party’s Indemnified Liabilities.
(b)To the extent permitted by applicable law, no Credit Party shall assert, and each Credit Party hereby waives, any claim against each Lender, each Issuing Bank, each Agent and any Affiliate of the foregoing, and each of the foregoing’s respective directors, employees, attorneys, advisors, agents or sub-agents, on any theory of liability, for special, indirect, consequential or punitive damages (including, without limitation, any loss of profits, business or anticipated savings) (as opposed to direct or actual damages), whether or not the claim therefor is based on contract, tort or duty imposed by any applicable legal requirement, arising out of, in connection with, arising out of, as a result of, or in any way related to, this Agreement, any Credit Document, the TSA or any agreement or instrument contemplated hereby or thereby or referred to herein or therein, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof or any act or omission or event occurring in connection therewith, and each of the Parent Borrower and each other Credit Party hereby waives, releases and agrees not to sue upon any such claim or any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.
(c)If, for the purposes of obtaining judgment in any court in any jurisdiction with respect to this Agreement or any other Credit Document, it becomes necessary to convert into a particular currency (the “Judgment Currency”) any amount due under this Agreement or under any other Credit Document in any currency other than the Judgment Currency (the “Currency Due”), then conversion shall be made at the rate of exchange prevailing on the Business Day before the day on which judgment is given. For this purpose “rate of exchange” means the rate at which the Administrative Agent is able, on the relevant date, to purchase the Currency Due with the Judgment Currency in accordance with its normal practice at its head office in New York, New York or London, England. In the event that there is a change in the rate of exchange prevailing between the Business Day before the day on which the judgment is given and the date of receipt by the Administrative Agent of the amount due, the applicable Borrower will, on the date of receipt by the Administrative Agent, pay such additional amounts, if any, or be entitled to receive reimbursement of such amount, if any, as may be necessary to ensure that the amount received by the Administrative Agent on such date is the amount in the Judgment Currency which when converted at the rate of exchange prevailing on the date of receipt by the Administrative Agent is the amount then due under this Agreement or such other Credit Document in the Currency Due. If the amount of the Currency Due which the Administrative Agent is so able to purchase is less than the amount of the Currency Due originally due to it, the applicable Borrower shall indemnify and save the Administrative Agent and the Lenders harmless from and against all loss or damage arising as a result of such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations contained in this Agreement and the other Credit Documents, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by the Administrative Agent from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due under this Agreement or any other Credit Document or under any judgment or order.
(d)Each Credit Party agrees that any indemnification or other protection provided to any Indemnitee pursuant to this Agreement (including pursuant to this Section 10.3) or any other Credit Document shall (i) survive payment in full of the Obligations and (ii) inure to the benefit of any Person that was at any time an Indemnitee under this Agreement or any other Credit Document.
(e)IN NO EVENT SHALL ANY AGENT AFFILIATE HAVE ANY LIABILITY TO ANY CREDIT PARTY, LENDER, ISSUING BANK OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT OR CONTRACT OR OTHERWISE) ARISING OUT OF ANY CREDIT PARTY OR ANY AGENT AFFILIATE’S TRANSMISSION OF APPROVED ELECTRONIC COMMUNICATIONS THROUGH THE INTERNET OR ANY USE OF THE PLATFORM, EXCEPT TO THE EXTENT SUCH LIABILITY OF ANY AGENT AFFILIATE IS FOUND IN A FINAL NON- APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED PRIMARILY FROM SUCH AGENT AFFILIATE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
(f)Notwithstanding anything in this Section 10.3 to the contrary, funds received from or held by any European Credit Party shall be applied subject to the European Limitations.
10.35Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, subject to the Intercreditor Agreement, upon the occurrence and during the continuance of any Event of Default each Lender, each Issuing Bank and each Agent and each of their Affiliates is hereby authorized by each Credit Party at any time or from time to time subject to the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed), without notice to any Credit Party or to any other Person (other than Administrative Agent), any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits (general or special, including Indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) and any other Indebtedness at any time held or owing by such Lender, Issuing Bank or Agent or any of their respective Affiliates to or for the credit or the account of any Credit Party against and on account of the obligations and liabilities of any Credit Party to such Person hereunder, the Letters of Credit and participations therein and under the other Credit Documents, including all claims of any nature or description arising out of or connected hereto, the Letters of Credit and participations therein or with any other Credit Document, irrespective of whether or not (a) such Person shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any amounts in respect of the Letters of Credit or any other amounts due hereunder shall have become due and payable pursuant to Section 2 and although such obligations and liabilities, or any of them, may be contingent or unmatured. Notwithstanding the foregoing, to the extent prohibited by applicable law as described in the definition of “Excluded Swap Obligation,” no amounts received from, or set off with respect to, any Credit Party shall be applied to any Excluded Swap Obligations of such Credit Party.
10.36Amendments and Waivers.
(a)No failure or delay by any Agent, the Issuing Bank or any Lender in exercising any right or power hereunder or under any other Credit Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the Agents, the Issuing Bank and the Lenders hereunder and under any other Credit Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Credit Document or consent to any departure by any Credit Party therefrom shall in any event be effective unless the same shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan or issuance of a Letter of Credit shall not be construed as a waiver of any Default, regardless of whether any Agent, any Lender or the Issuing Bank may have had notice or knowledge of such Default at the time.
(b)Subject to Section 2.23, Section 2.25(c), (d) and (e) and Section 10.5(e) below, neither this Agreement nor any other Credit Document nor any provision hereof or thereof may be waived, amended or modified except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrowers and the Required Lenders or
(ii) in the case of any other Credit Document, pursuant to an agreement or agreements in writing entered into by the Applicable Agent and the Credit Party or Credit Parties that are parties thereto, with the consent of the Required Lenders; provided that no such agreement shall (A) increase the Revolving Commitment of any Lender without the written consent of such Lender (including any such Lender that is a Defaulting Lender), (B) reduce or forgive the principal amount of any Loan or Reimbursement Obligation or reduce the rate of interest thereon, or reduce or forgive any interest or fees payable hereunder, without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby (provided that any amendment or modification of the financial covenants in this Agreement (or any defined term used therein) shall not constitute a reduction in the rate of interest or fees for purposes of this clause (B)), (C) postpone any scheduled date of payment of the principal amount of any Loan or Reimbursement Obligation, or any date for the payment of any interest, fees or other Obligations payable hereunder, or reduce the amount of, waive or excuse any such payment, or postpone the scheduled date of expiration of any Revolving Commitment (except as permitted by Section 2.23), without the written consent of each Lender (including any such Lender that is a Defaulting Lender) directly affected thereby, (D) change Section 2.12, Section 2.15 or Section 2.16 in a manner that would alter the ratable reduction of Revolving Commitments or the manner in which payments or proceeds are shared, without the written consent of each Lender directly affected thereby (other than any Defaulting Lender), (E) increase the advance rates set forth in the definition of any Borrowing Base without the written consent of each Lender (other than any Defaulting Lender), (F) make any change to the definition of any Borrowing Base or the component definitions thereof which result in increased borrowing availability, without the written consent the Supermajority Revolving Lenders (other than any Defaulting Lender) (it being understood, for the avoidance of doubt, that increases in the advance rates set forth in the definition of any Borrowing Base shall be subject to the foregoing clause (E)), (G) change any of the provisions of this Section or the definition of “Required Lenders”, “Supermajority Revolving Lenders”, “Pro Rata Share” or any other provision of any Credit Document specifying the number or percentage of Lenders (or Lenders of any Tranche) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder, or include any new or increased Revolving Commitments or Revolving Credit Exposure established pursuant to any amendment hereto in the definitions of “Required Lenders” or any other provision of any Credit Document specifying the number or percentage of Lenders (or Lenders of any Tranche) required to waive, amend or modify any rights thereunder or make any determination or grant any consent thereunder for purposes of any consent to be obtained therewith in connection with any transaction contemplated at the time of such amendment, in each case without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby, (H) change Section 2.21(c) without the consent of each Lender (other than any Defaulting Lender), (I) release any Guarantor (other than a Guarantor that is an Immaterial Subsidiary) from its obligation under its Guaranty (except as otherwise permitted herein or in the other Credit Documents), without the written consent of each Lender (other than any Defaulting Lender), (J) except as provided in clause (c) of this Section or in any Collateral Document, release all or substantially all of the Collateral, without the written consent of each Lender (other than any Defaulting Lender) or (K) directly or indirectly (x) subordinate any of the Obligations in right of payment to the prior payment of any other Indebtedness or obligations of the Credit Parties or (y) subordinate the Liens on any of the ABL Collateral to any other Lien on such Collateral securing any other Indebtedness or obligations of the Credit Parties (including, without limitation, any amendment to the definition of “Permitted Refinancing Indebtedness” that would
have substantially the same effect), without the written consent of each Lender (other than any Defaulting Lender) directly affected thereby; provided, further, that no such agreement shall amend, modify or otherwise affect the rights or duties of any Agent, Issuing Bank or Swing Line Lender hereunder without the prior written consent of such Agent, Issuing Bank or Swing Line Lender, as the case may be (it being understood that any amendment to Section 2.21 shall require the consent of the Administrative Agent, each Issuing Bank and each Swing Line Lender); provided further that no such agreement shall amend or modify the provisions of Section 2.3 without the prior written consent of the Administrative Agent and the Issuing Banks. The Administrative Agent may also amend Appendix A to reflect assignments entered into pursuant to Section 10.6. Any amendment, waiver or other modification of this Agreement or any other Credit Document that by its terms affects the rights or duties under this Agreement of the Lenders of one or more Tranches (but not the Lenders of any other Tranche), may be effected by an agreement or agreements in writing entered into by the Borrowers and the requisite number or percentage in interest of each affected Tranche of Lenders that would be required to consent thereto under this Section if such Tranche of Lenders were the only Tranche of Lenders hereunder at the time.
(c)Subject to the Intercreditor Agreement, each of the Lenders and the Issuing Banks hereby:
(viii)consents to the release and hereby directs, in accordance with the terms hereof, the Applicable Collateral Agent to release any Lien held by the Applicable Collateral Agent for the benefit of the Lenders and the Issuing Banks against any of the following:
(1)all of the Collateral and all Credit Parties, upon termination of the Revolving Commitments and payment and satisfaction in full in cash of all Loans, all Reimbursement Obligations and all other Obligations (other than Contingent Obligations) that the Administrative Agent has been notified in writing are then due and payable (and, in respect of contingent Letter of Credit Obligations, with respect to which cash collateral has been deposited or a back-up letter of credit has been issued, in either case in the appropriate currency and on terms satisfactory to the Administrative Agent and the applicable Issuing Banks);
(2)any assets that are not ABL Collateral that are subject to a Lien permitted by Section 6.5(k) or securing purchase money Indebtedness or any Indebtedness with respect to Finance Lease Obligations that is incurred pursuant to Section 6.7(y) and subject to a Lien permitted by Section 6.5(k), in each case to the extent the terms of any purchase money Indebtedness or any Indebtedness with respect to Capital Leases do not permit a Lien on such acquired assets to secure the Obligations and to the extent such assets are not subject to a Lien in favor of the Fixed Asset Facility Collateral Agent for the benefit of the holders of the Fixed Asset Facility;
(3)any part of the Collateral sold or disposed of by a Credit Party to a Person that is not a Credit Party if such sale or disposition is permitted by this Agreement (or permitted pursuant to a waiver of or consent to a transaction otherwise prohibited by this Agreement);
(4)any Collateral as required to effect any sale or other disposition of such Collateral in connection with any exercise of remedies of any Agent and the Lenders pursuant to Article VIII;
(5)any assets that become Excluded Assets (save that any Excluded Assets which are subject to an English law floating charge under the UK Debenture or any equivalent “all assets” UK Collateral Document entered into by a UK Credit Party shall not be released and shall continue to be secured by the floating charge created under such UK Collateral Document); and
(ix)directs, in accordance with the terms hereof, the Administrative Agent to release any Guarantor Subsidiary from its obligations under the Guaranty if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder (or permitted pursuant to a waiver of or consent to a transaction otherwise prohibited by this Agreement) or is no longer required to be a Guarantor under the terms of the Credit Documents, including because such Person has become an Excluded Subsidiary as a result of a transaction permitted hereunder (or permitted pursuant to a waiver of or consent to a transaction otherwise prohibited by this Agreement); and
(x)directs the Agents to execute and deliver or file such termination and partial re- lease statements and do such other things as are necessary to release Liens to be released pursuant to this Section 10.5(c) promptly upon the effectiveness of any such release; provided that not- withstanding anything to the contrary herein, no Guarantor shall be released from its obligations under the Credit Documents solely by reason of such Guarantor ceasing to be a Wholly Owned Subsidiary unless either (x) it is no longer a direct or indirect Subsidiary of the Parent Borrower or (y) such Guarantor ceases to be a Wholly Owned Subsidiary as a result of a sale, issuance or transfer of Equity Interests to a Person that is not an Affiliate of the Parent Borrower and such sale or transfer is made for a bona fide business purpose of the Parent Bor-rower and its Subsidi- aries and not for the primary purpose of evading the requirements of Sections 5.9, 5.11 and 7;
Any such release shall not in any manner discharge, affect, or impair the Obligations or any Liens (other than those expressly being released) upon (or obligations of the Credit Parties in respect of) all interests retained by the Credit Parties, including the proceeds of any sale, all of which shall continue to constitute part of the Collateral. Any execution and delivery by any Agent of documents in connection with any such release shall be without recourse to or warranty by such Agent.
(d)If, in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender” or “each Lender affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but has not been obtained being referred to herein as a “Non-Consenting Lender”), then the Borrowers may elect to replace a Non-Consenting Lender as a Lender party to this Agreement, provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to the Borrowers, the Administrative Agent and the Issuing Bank shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an Assignment Agreement and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of clause (b) of Section 10.6(c), and (ii) the Borrowers shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all interest, fees and other amounts then accrued but unpaid to such Non- Consenting Lender by the Borrowers hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 2.18 and 2.19, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 2.18 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender. Each party hereto agrees that an assignment required pursuant to this paragraph may be effected pursuant to an
Assignment Agreement executed by the Parent Borrower, the Administrative Agent and the assignee (or, to the extent applicable, an agreement incorporating an Assignment Agreement by reference pursuant to an Approved Electronic Platform as to which the Administrative Agent and such parties are participants), and the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to an be bound by the terms thereof; provided that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto; provided further that such assignment shall be subject to Section 10.6(f) and 10.8.
(e)Notwithstanding anything to the contrary herein, the Administrative Agent may, with the consent of the Parent Borrower only, amend, modify or supplement this Agreement or any of the other Credit Documents to cure any ambiguity, omission, mistake, defect or inconsistency.
(f)Notwithstanding anything in this Section 10.5 or any other Credit Document, guarantees, collateral documents and related documents executed by Credit Parties in connection with this Agreement may be in a form reasonably determined by the Administrative Agent and may be, together with any other Credit Document, entered into, amended, supplemented or waived, without the consent of any other person, by the applicable Credit Party or Credit Parties, the Applicable Agent and the Administrative Agent in its sole discretion, to (i) effect the granting, perfection, protection, expansion or enhancement of any security interest in any Collateral or additional property to become Collateral for the benefit of the Secured Parties, (ii) as required by local law to give effect to, or protect any security interest for the benefit of the Secured Parties, in any property or so that the security interests therein comply with applicable requirements of law, or (iii) to cure ambiguities, omissions, mistakes or defects or to cause such guarantee, collateral document or other document to be consistent with this Agreement and the other Credit Documents.
10.37Successors and Assigns; Participations.
(a)Generally. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall inure to the benefit of the parties hereto and the successors and assigns of Lenders. Except as otherwise expressly permitted by Section 6.2 or pursuant to Section 10.5(b), no Credit Party’s rights or obligations hereunder nor any interest therein may be assigned or delegated by any Credit Party without the prior written consent of all Lenders. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby and, to the extent expressly contemplated hereby, Affiliates of each of the Agents and Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
(b)Register. Each Borrower, Administrative Agent and Lender shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Revolving Commitments and Loans listed therein for all purposes hereof (notwithstanding any notice to the contrary), and no assignment or transfer of any such Revolving Commitment or Loan shall be effective, in each case, unless and until recorded in the Register following receipt of an Assignment Agreement effecting the assignment or transfer thereof as provided in Section 10.6(d), together with any Revolving Loan Note (if the assigning Lender’s Loans are evidenced by a Revolving Loan Note) subject to such assignment. Each assignment shall be recorded in the Register on the Business Day the Assignment Agreement is received by the Administrative
Agent, if received by 12:00 noon New York City time, and on the following Business Day if received after such time, prompt notice thereof shall be provided to the Borrowers and a copy of such Assignment Agreement shall be maintained. The date of such recordation of a transfer shall be referred to herein as the “Assignment Closing Date.” Any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be presumptively correct as to any subsequent holder, assignee or transferee of the corresponding Revolving Commitments or Loans.
(c)Right to Assign. Each Lender shall have the right at any time to sell, assign or transfer to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement, including, without limitation, all or a portion of its Revolving Commitment or Loans owing to it or other Obligations (with, in all cases other than assignments by or to the Administrative Agent or an Affiliate of the Administrative Agent, the consent (not to be unreasonably withheld) of the Issuing Banks and the Swing Line Lenders in addition to the consents required below); provided, however, that (except in the case of an assignment pursuant to Section 8.5) each such assignment shall be of a uniform, and not varying, percentage of all rights and obligations under and in respect of any Revolving Loan and any related Revolving Commitments:
(xi)[reserved];
(xii)to any Eligible Assignee upon giving of notice to the Borrowers and the Administrative Agent and (except in the case of assignments made to an Affiliate of an Agent), being consented to by the Parent Borrower and the Administrative Agent (such consent not to be (x) unreasonably withheld or delayed or, (y) in the case of the Parent Borrower, required (I) at any time an Event of Default under Sections 8.1(a), (f) or (g), shall have occurred and then be continuing or (II) with respect to an assignment to a Lender, an Affiliate of a Lender or a Related Fund); provided, further (A) each such assignment pursuant to this Section 10.6(c)(ii) shall be in an aggregate amount of not less than Dollar Equivalent $5,000,000 or integral multiples of Dollar Equivalent $1,000,000 in excess thereof (or such lesser amount as may be agreed to by the Parent Borrower and the Administrative Agent or as shall constitute the aggregate amount of the Revolving Commitments and Revolving Loans of the assigning Lender) with respect to the assignment of the Revolving Commitments and Revolving Loans; provided that Related Funds may aggregate their Revolving Commitments and Revolving Loans for purposes of determining compliance with such minimum assignment amount and (B) in the case of an assignment by a Lender, such Person shall meet the criteria of the definition of the term of “Lender”;
(xiii)notwithstanding anything to the contrary in this Agreement and except in the case of an assignment (or otherwise transfer of rights or obligations) (A) to a Swiss Qualifying Bank or (B) to any Lender pursuant to Section 8.5, an assignment (or otherwise transfer of rights or obligations) of a Loan to a Swiss Borrower shall be subject to the prior written consent of such Swiss Borrower (such consent not to be unreasonably withheld, it being understood that it would not be unreasonable for a Swiss Borrower to withhold its consent if, following such assignment or transfer, either of the Swiss Non- Bank Rules would be violated), unless an Event of Default under Sections 8.1(a), (f) or
(g) shall have occurred and then be continuing); and
(xiv)The Eligible Assignee shall not be incorporated, domiciled or acting through a facility office in a Non-Cooperative Jurisdiction without the prior consent of the Lenders.
(d)Mechanics. Assignments and assumptions of Revolving Loans and Revolving Commitments shall only be effected by manual execution and delivery to the Administrative Agent of an Assignment Agreement. Such assignments shall cover the same percentage of such Lenders Revolving Commitments and Revolving Credit Exposure. Assignments made pursuant to the foregoing provision shall be effective as of the Assignment Closing Date. In connection with all assignments, there shall be delivered to the Administrative Agent such forms, certificates or other evidence, if any, with respect to United States federal income tax withholding matters as the assignee under such Assignment Agreement may be required to deliver pursuant to Section 2.19(k).
(e)Representations and Warranties of Assignee. Each Lender, upon execution and delivery hereof or upon succeeding to an interest in the Revolving Commitments and Loans, as the case may be, represents and warrants as of the Closing Date or as of the Assignment Closing Date that (1) it is an Eligible Assignee; (2) it has experience and expertise in the making of or investing in commitments or loans such as the applicable Revolving Commitments or Loans, as the case may be; (3) it will make or invest in, as the case may be, its Revolving Commitments or Loans for its own account in the ordinary course and without a view to distribution of such Revolving Commitments or Loans within the meaning of the Securities Act or the Exchange Act or other federal securities laws (it being understood that, subject to the provisions of this Section 10.6, the disposition of such Revolving Commitments or Loans or any interests therein shall at all times remain within its exclusive control); and (4) it is a Swiss Qualifying Bank or, if not, it accounts as one single creditor for the purposes of the Swiss Non-Bank Rules.
(f)Effect of Assignment. On and after the applicable Assignment Closing Date, upon the recording of such assignment and acceptance in the Register and the receipt by the Administrative Agent from the assignee of an assignment fee in the amount of $3,500 (it being understood and agreed that (x) substantially contemporaneous assignments to any two or more Related Funds shall be treated as an assignment to a single Eligible Assignee for purposes of the applicable amount of such assignment fee and (y) no such assignment fee shall be required in connection with assignments by or to any Agent or Affiliate thereof), (i) the assignee thereunder shall become a party hereto and, to the extent that rights and obligations under the Credit Documents have been assigned to such assignee pursuant to such Assignment Agreement, have the rights and obligations of a Lender and, if such Lender were an Issuing Bank, of such Issuing Bank hereunder and thereunder, (ii) the Revolving Loan Notes (if any) corresponding to the Loans assigned thereby shall be transferred to such assignee by notation in the Register and (iii) the assignor thereunder shall, to the extent that rights and obligations under this Agreement have been assigned by it pursuant to such Assignment Agreement, relinquish its rights (except for those surviving the payment in full of the Obligations) and be released from its obligations under the Credit Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under the Credit Documents, such Lender shall cease to be a party hereto) relinquish its rights (except for those surviving the payment in full of the Obligations) and be released from its obligations under the Credit Documents, other than those relating to events or circumstances occurring prior to such assignment (and, in the case of an Assignment Agreement covering all or the remaining portion of an assigning Lender’s rights and obligations under the Credit Documents, such Lender shall cease to be a party hereto).
(g)Participations. Each Lender shall have the right (without the consent of, or notice to, the Borrowers and Agents (except as set forth below)) at any time to sell one or more participations to any Person (other than the Parent Borrower or any of its Affiliates or a natural person or any Disqualified Lender) in all or any part of its Revolving Commitments, Loans or in any other Obligation (provided that in the case of a Loan to a Swiss Borrower, Section 10.6(c) and 10.6(i) are complied with). The holder of any such participation, other than an Affiliate of the Lender granting such participation, shall not be entitled to require such Lender to take or omit to take any action hereunder except that the participation agreement or instrument may provide that such Lender will not, without the consent of the participant, agree to any amendment, modification or waiver that would (i) extend the final scheduled maturity of any Loan, Note or Letter of Credit (unless such Letter of Credit is not extended beyond the Revolving Commitment Termination Date) in which such participant is participating, or reduce the rate or extend the time of payment of interest or fees thereon (except in connection with a waiver of applicability of any post-default increase in interest rates or amendments to the definition of Excess Availability that would impact the amount of the Applicable Margin) or reduce the principal amount thereof, or increase the amount of the participant’s participation over the amount thereof then in effect (it being understood that a waiver of any Default or Event of Default or of a mandatory reduction in the Revolving Commitment shall not constitute a change in the terms of such participation, and that an increase in any Revolving Commitment or Loan shall be permitted without the consent of any participant if the participant’s participation is not increased as a result thereof), (ii) consent to the assignment or transfer by any Borrower or any Guarantor which is a Subsidiary of Parent Borrower of any of its rights and obligations under this Agreement (except as expressly permitted pursuant to Section 6.2) or (iii) release all or substantially all of the Collateral under the Collateral Documents (except as expressly provided in the Credit Documents) supporting the Loans hereunder in which such participant is participating. The Borrowers agree that each participant shall be entitled to the benefits of Sections 2.17(d), 2.18 and 2.19 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (c) of this Section (subject to the requirements and limitations therein, including the requirement to provide any applicable documentation under Section 2.19(k)); provided a participant shall not be entitled to receive any greater payment under Section 2.18 or 2.19 than the Lender would have been entitled to receive with respect to the participation sold to such participant, unless such entitlement to a greater payment results from a change in any Law after the sale of the participation takes place. With respect to any Loan made to a US Borrower, each Lender that sells participations to a participant, acting solely for this purpose as a non-fiduciary agent of the US Borrowers, shall maintain a register of all such participants. The entries in the participant register shall be conclusive (absent manifest error), and the US Borrowers and the Lenders shall treat each Person whose name is recorded in the participant register pursuant to the terms hereof as a participant for all purposes of this Agreement, notwithstanding notice to the contrary. To the extent permitted by law, each participant also shall be entitled to the benefits of Section 10.4 as though it were a Lender, provided such participant agrees to be subject to Section 2.16 as though it were a Lender.
(h)Certain Other Assignments. In addition to any other assignment permitted pursuant to this Section 10.6, any Lender may, without the consent of the Borrower or theAdministrative Agent, assign and/or pledge all or any portion of its Loans, the other Obligations owed by or to such Lender, and its Notes, if any, to secure obligations of such Lender including, without limitation, any Federal Reserve Bank as collateral security pursuant to Regulation A of the Board of Governors of the Federal Reserve System and any operating circular issued by such Federal Reserve Bank; provided, no Lender, as between the Borrowers and such Lender, shall be relieved of any of its obligations hereunder as a result of any such assignment and pledge, and provided further, in no event shall the applicable Federal Reserve
Bank, pledgee or trustee be considered to be a “Lender” or be entitled to require the assigning Lender to take or omit to take any action hereunder.
(i)Exposure Transfers. Except as permitted under Section 10.6(c) and (g), no Lender shall, in case of a Loan to a Swiss Borrower, enter into any arrangement with another person under which such Lender substantially transfers its exposure under this Agreement to that other person, unless under such arrangement throughout the life of such arrangement:
(xv)the relationship between the Lender and that other person is that of debtor and creditor (including in the bankruptcy or similar event of the Lender or a Borrower);
(xvi)the other person will have no proprietary interest in the benefit of this Agreement or in any monies received by the Lender under or in relation to this Agreement; and
(xvii)the other person will under no circumstances (a) be subrogated to, or substituted in respect of, the Lender’s claims under this Agreement, and (b) have otherwise any contractual relationship with, or rights against, a Borrower under or in relation to this Agreement.
(j)Spanish law particularities
(xviii)At the reasonable request of the Agent, each of the Lender and the Assignee (each at its own cost) shall promptly formalize the duly completed Assignment Agreement as a Spanish Public Document.
(xix)The Parties agree that a transfer or assignment under this Section shall constitute a transfer of any Spanish Collateral Agreements to the Assignee in the manner set out in Article 1,203 et seq. of the Spanish Civil Code, and with the effects set out in Article 1,528 of the Spanish Civil Code.
(xx)Each Spanish Credit Party hereby expressly waives any right it may have in the future under article 1,535 of the Spanish Civil Code to any extent it may be applicable.
(k)Each Spanish Credit Party (and each other Credit Party having granted a Spanish Collateral Agreement) accepts all transfers and assignments made by the Lenders under and in accordance with the terms of this Agreement without requiring any additional formalities, and undertakes, if necessary, to cooperate in the granting of any Spanish Public Document required for such purposes, if necessary. Any legal fees in connection with the transfer and assignments will be borne by the assignee and transferee, and any notarial and registration costs and, if applicable, any taxes arising from the execution of the transfer and assignment (including the transfer of the Spanish Collateral Agreements, as applicable) will be borne by such assignee or transferee.
10.38Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or an Event of Default if such action is taken or condition exists.
10.39Survival of Representations, Warranties and Agreements. All representations, warranties and agreements made herein shall survive the execution and delivery hereof and the making of any Credit Extension. Notwithstanding anything herein or implied by law to the contrary, the agreements set forth in Sections 2.16, 2.17(d), 2.18, 2.19, 9, 10.2 and 10.3 shall survive the payment of the Loans, the cancellation or expiration of the Letters of Credit and the payment of any Reimbursement Obligations, and the termination hereof.
10.40No Waiver; Remedies Cumulative. No failure or delay on the part of any Agent or any Lender or any Issuing Bank in the exercise of any power, right or privilege hereunder or under any other Credit Document shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other power, right or privilege. The rights, powers and remedies given to each Agent, each Lender and each Issuing Bank hereby are cumulative and shall be in addition to and independent of all rights, powers and remedies existing by virtue of any statute or rule of law or in any of the other Credit Documents or any of the Cash Management Documents, any of the Bi- lateral LC/WC Agreements or any of the Hedge Agreements. Any forbearance or failure to exercise, and any delay in exercising, any right, power or remedy hereunder shall not impair any such right, power or remedy or be construed to be a waiver thereof, nor shall it preclude the further exercise of any such right, power or remedy.
10.41Marshalling; Payments Set Aside. Neither any Agent nor any Lender nor any other Secured Party shall be under any obligation to marshal any assets in favor of any Credit Party or any other Person or against or in payment of any or all of the Obligations. To the extent that any Credit Party makes a payment or payments to any Agent, any Lender or any Issuing Bank (or to the Applicable Agent, on behalf of any such Person) pursuant to the terms of any of the Credit Documents or otherwise related to the Obligations, or any Agent, Lender or Issuing Bank enforces any security interests or exercise their rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee, monitor, receiver, interim receiver or any other party under any Debtor Relief Law, common law or any equitable cause, then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or setoff had not occurred.
10.42Severability. In case any provision in or obligation hereunder or under any other Credit Document shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.
10.43Obligations Several; Independent Nature of Lenders’ Rights. The obligations of the Lenders hereunder are several and no Lender shall be responsible for the obligations or Revolving Commitment of any other Lender hereunder. Nothing contained herein or in any other Credit Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a partnership, an association, a joint venture or any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out hereof and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.
10.44Headings. Section headings herein are included herein for convenience of reference only and shall not constitute a part hereof for any other purpose or be given any substantive effect.
10.45GOVERNING LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
10.46CONSENT TO JURISDICTION; SERVICE OF PROCESS.
SUBJECT TO CLAUSE (E) OF THE FOLLOWING SENTENCE, ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENTS GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, OR ANY OF THE OBLIGATIONS, SHALL BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN (OR IF SUCH COURT LACKS SUBJECT MATTER JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE EXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS (OTHER THAN WITH RESPECT TO ACTIONS BY ANY AGENT IN RESPECT OF RIGHTS UNDER ANY SECURITY AGREEMENT GOVERNED BY LAWS OTHER THAN THE LAWS OF THE STATE OF NEW YORK OR WITH RESPECT TO ANY COLLATERAL SUBJECT THERETO); (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) EXCEPT FOR PROCEEDINGS RELATING TO POLISH BORROWER OR GUARANTOR, AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER ANY COLLATERAL DOCUMENT OR THE ENFORCEMENT OF ANY JUDGMENT.
Each Party acknowledges and accepts that, if a Party is represented by an attorney in connection with the signing and/or execution of this Agreement or any other agreement, deed or document referred to in this Agreement or made pursuant to this Agreement, and the power of attorney is governed by Dutch law, that the existence and extent of the attorney’s authority and the effects of the attorney's exercise or purported exercise of its authority shall be governed by Dutch law.
10.47WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
LOAN TRANSACTION OR THE LENDER/BORROWERS RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 10.16 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE HEREUNDER. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
10.48Confidentiality. Each Agent and each Lender shall hold all non-public information regarding the Parent Borrower and its Subsidiaries, and their respective businesses identified as such by The Parent Borrower or any Borrower and obtained by such Lender pursuant to the requirements hereof in accordance with such Lender’s customary procedures for handling confidential information of such nature, it being understood and agreed by each Credit Party that, in any event, each Agent and each Lender may make (i) disclosures of such information to Affiliates of such Lender or Agent and to their respective officers, directors, employees, agents, trustees and advisors (and to other Persons authorized by a Lender or Agent to organize, present or disseminate such information in connection with disclosures otherwise made in accordance with this Section 10.17), (ii) disclosures of such information reasonably required by any bona fide or potential assignee, transferee or participant in connection with the contemplated assignment, transfer or participation of any Loans or any participations therein, in each case, permitted by Section 10.6 (it being understood that, in any event, the list of Disqualified Lenders can be provided as set forth in the definition thereof), or by any pledgee referred to in Section 10.6(h) or by any direct or indirect contractual counterparties (or the professional advisors thereto) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder (provided, such assignees, transferees, participants, pledgees, counterparties and advisors are advised of and agree to be bound by either the provisions of this Section 10.17 or other provisions at least as restrictive as this Section 10.17), (iii) disclosure to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality of any confidential information relating to the Credit Parties received by it from any of the Agents or any Lender, (iv) disclosures required or requested by any governmental agency or regulatory authority or representative thereof or by the NAIC or pursuant to legal or judicial process; provided, unless specifically prohibited by applicable law or court order, each Lender and each Agent shall make reasonable efforts to notify the Borrowers of any request by any governmental agency or representative thereof (other than any such request in connection with any examination of the financial condition or other routine examination of such Lender by such governmental agency) for disclosure of any such non-public information prior to disclosure of such information and (v) disclosure to the extent required by a potential or actual insurer or reinsurer in connection with providing insurance,
reinsurance or credit risk mitigation coverage under which payments are to be made or may be made by reference to this Agreement. In addition, the Agents, the Issuing Banks and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Agents or any Issuing Bank or Lender in connection with the administration of this Agreement, the other Credit Documents, and the Commitments. Nothing in any Credit Document shall prevent the disclosure of any Information or other matter to the extent that preventing that disclosure would otherwise cause any transaction contemplated by the Credit Documents or any transaction carried out in connection with any transaction contemplated by the Credit Documents to become an arrangement described in Part II A 1 of DAC6.
10.49Entire Agreement. This Agreement, together with all of the other Credit Documents and all certificates and documents delivered hereunder or thereunder, embodies the entire agreement of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. In the event of any conflict between the terms of this Agreement and any other Credit Document (other than the Intercreditor Agreement), the terms of this Agreement shall govern. This Agreement and each other Credit Document are subject to the terms and conditions set forth in the Intercreditor Agreement in all respects and, in the event of any conflict between the terms of the Intercreditor Agreement and this Agreement or any other Credit Document, the terms of Intercreditor Agreement shall govern.
10.50Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. A set of the copies of this Agreement signed by all parties shall be lodged with the Parent Borrower and Administrative Agent.
10.51Patriot Act. Each Lender that is subject to the requirements of the Patriot Act and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies such Borrower, which information includes the name and address of such Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower in accordance with the Patriot Act.
10.52Electronic Execution. Delivery of an executed counterpart of a signature page of (x) this Agreement, (y) any other Credit Document and/or (z) any document, amendment, approval, consent, information, notice (including, for the avoidance of doubt, any notice delivered pursuant to Section 10.1), certificate, request, statement, disclosure or authorization related to this Agreement, any other Credit Document and/or the transactions contemplated hereby and/or thereby (each an “Ancillary Document”) that is an Electronic Signature transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this Agreement, such other Credit Document or such Ancillary Document, as applicable. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement, any other Credit Document and/or any Ancillary Document shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be; provided that nothing herein shall require any Agent to accept Electronic Signatures in any form or format without its prior written consent and pursuant to procedures approved by it; provided, further, without limiting the foregoing, (i) to the extent any Agent has agreed to accept any Electronic Signature, each Agent and each of the Lenders shall be entitled to rely on such Electronic
Signature purportedly given by or on behalf of any Borrower or any other Credit Party without further verification thereof and without any obligation to review the appearance or form of any such Electronic Signature and (ii) upon the request of any Agent or any Lender, any Electronic Signature shall be promptly followed by a manually executed counterpart. Without limiting the generality of the foregoing, each Borrower and each Credit Party hereby (A) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Agents, the Lenders, the Borrowers and the Credit Parties, Electronic Signatures transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page and/or any electronic images of this Agreement, any other Credit Document and/or any Ancillary Document shall have the same legal effect, validity and enforceability as any paper original, (B) each Agent and each of the Lenders may, at its option, create one or more copies of this Agreement, any other Credit Document and/or any Ancillary Document in the form of an imaged electronic record in any format, which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document (and all such electronic records shall be considered an original for all purposes and shall have the same legal effect, validity and enforceability as a paper record), (C) waives any argument, defense or right to contest the legal effect, validity or enforceability of this Agreement, any other Credit Document and/or any Ancillary Document based solely on the lack of paper original copies of this Agreement, such other Credit Document and/or such Ancillary Document, respectively, including with respect to any signature pages thereto and (D) waives any claim against any Agent, any Lead Arranger, any Co-Syndication Agent, any Co-Documentation Agent, any Issuing Bank and any Lender, and any Related Party of any of the foregoing Persons, for any Liabilities arising solely from any Agent’s and/or any Lender’s reliance on or use of Electronic Signatures and/or transmissions by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page, including any Liabilities arising as a result of the failure of any Borrower and/or any Credit Party to use any available security measures in connection with the execution, delivery or transmission of any Electronic Signature.
10.53Joint and Several Liability. All Loans upon funding shall be deemed to be jointly funded to and received by the Borrowers. Each Borrower is jointly and severally liable under this Agreement for all Obligations, regardless of the manner or amount in which proceeds of Loans are used, allocated, shared or disbursed by or among the Borrowers themselves, or the manner in which an Agent and/or any Lender accounts for such Loans or other extensions of credit on its books and records. Each Borrower shall be liable for all amounts due to an Agent and/or any Lender from the Borrowers under this Agreement, regardless of which Borrower actually receives Loans or other extensions of credit hereunder or the amount of such Loans and extensions of credit received or the manner in which such Agent and/or such Lender accounts for such Loans or other extensions of credit on its books and records. Each Borrower’s Obligations with respect to Loans and other extensions of credit made to it, and such Borrower’s Obligations arising as a result of the joint and several liability of such Borrower hereunder with respect to Loans made to the other Borrowers hereunder shall be separate and distinct Obligations, as applicable, but all such Obligations shall be primary Obligations of such Borrower. The Borrowers acknowledge and expressly agree with the Agents and each Lender that the joint and several liability of each Borrower is required solely as a condition to, and is given solely as inducement for and in consideration of, credit or accommodations extended or to be extended under the Credit Documents to any or all of the other Borrowers and is not required or given as a condition of extensions of credit to such Borrower. Each Borrower’s Obligations under this Agreement shall, to the fullest extent permitted by law, be unconditional irrespective of (i) the validity or enforceability, avoidance, or subordination of the Obligations of any other Borrower or of any promissory note or other document evidencing all or any part of the Obligations of any other Borrower, (ii) the absence of any attempt to collect the Obligations from any other Borrower, or any other security therefor, or the absence of any other action to enforce the same,
(iii) the waiver, consent, extension, forbearance, or granting of any indulgence by an Agent and/or any Lender with respect to any provision of any instrument evidencing the Obligations of any other Borrower,
or any part thereof, or any other agreement now or hereafter executed by any other Borrower and delivered to an Agent and/or any Lender, (iv) the failure by an Agent and/or any Lender to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations of any other Borrower, (v) an Agent’s and/or any Lender’s election, in any proceeding instituted under the Bankruptcy Code or any other Debtor Relief Law, of the application of Section 1111(b)(2) of the Bankruptcy Code or similar or equivalent provisions of any other Debtor Relief Law,
(vi) any borrowing or grant of a security interest by any other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy Code or similar or equivalent provisions of any other Debtor Relief Law,
(vii) the disallowance of all or any portion of an Agent’s and/or any Lender’s claim(s) for the repayment of the Obligations of any other Borrower under Section 502 of the Bankruptcy Code or similar or equivalent provisions of any other Debtor Relief Law, or (viii) any other circumstances which might constitute a legal or equitable discharge or defense of a guarantor or of any other Borrower. With respect to any Borrower’s Obligations arising as a result of the joint and several liability of the Borrowers hereunder with respect to Loans or other extensions of credit made to any of the other Borrowers hereunder, such Borrower waives, until the Obligations shall have been paid in full and this Agreement shall have been terminated, any right to enforce any right of subrogation or any remedy which an Agent and/or any Lender now has or may hereafter have against any other Borrower, any endorser or any guarantor of all or any part of the Obligations, and any benefit of, and any right to participate in, any security or collateral given to an Agent and/or any Lender to secure payment of the Obligations or any other liability of any Borrower to an Agent and/or any Lender. Upon any Event of Default, the Agents may proceed directly and at once, without notice, against any Borrower to collect and recover the full amount, or any portion of the Obligations, without first proceeding against any other Borrower or any other Person, or against any security or collateral for the Obligations. Each Borrower consents and agrees that the Agents shall be under no obligation to marshal any assets in favor of any Borrower or against or in payment of any or all of the Obligations. Notwithstanding anything to the contrary in the foregoing,
(a) none of the foregoing provisions of this Section 10.22 shall apply to any Person released from its Obligations as a Borrower in accordance with Section 10.5, (b) if a “secured creditor” (as that term is defined under the Bankruptcy and Insolvency Act (Canada)) is determined by a court of competent jurisdiction not to include a Person to whom obligations are owed on a joint and several basis, then such Person’s Obligations, to the extent such Obligations are secured, shall be several obligations and not joint and several obligations, (c) the foregoing shall be subject to the European Limitations and (d) the Swiss Borrower shall not be liable for any other Credit Party’s Obligations.
10.54Agency of the Parent Borrower for Each Other Borrower and Guarantor.
(a)Each of the other Borrowers and Guarantors irrevocably appoints the Parent Borrower as its agent (and, in relation to each Italian Borrower and/or Italian Guarantor, as its agent with representative power (mandatario con potere di rappresentanza) for the purposes of, and pursuant to articles 1704 of, Italian law) for all purposes relevant to this Agreement, including the giving and receipt of notices and execution and delivery of all documents, instruments, and certificates contemplated herein (including, without limitation, execution and delivery to the Administrative Agent of Borrowing Base Certificates, Funding Notices and Conversion/Continuation Notices) and all modifications hereto. Any acknowledgment, consent, direction, certification, or other action which might otherwise be valid or effective only if given or taken by all or any of the Borrowers or acting singly, shall be valid and effective if given or taken only by the Parent Borrower, whether or not any of the other Borrowers join therein, and the Agents and the Lenders shall have no duty or obligation to make further inquiry with respect to the authority of the Parent Borrower under this Section 10.23; provided that nothing in this Section 10.23 shall limit the effectiveness of, or the right of the Agents and the Lenders to rely upon, any notice (including without limitation a Funding Notice or Conversion/Continuation
Notice), document, instrument, certificate, acknowledgment, consent, direction, certification or other action delivered by any Borrower pursuant to this Agreement.
(b)Each Italian Credit Party hereby expressly consents to the Parent Borrower acting as its agent with representative power (mandatario con potere di rappresentanza) for the purposes of Italian law, with express consent pursuant to articles 1394 and 1395 of the Italian Civil Code.
(c)The Parties to this Agreement hereby mutually release each other from the restrictions set out in Article 108 of the Polish Civil Code.
(d)For all purposes of this Agreement and this Section 10.23 each Swiss Borrower unconditionally releases the Parent Borrower from any restriction on self-contracting (Selbstkontrahieren) and/or double representation (Doppelvertretung) under Swiss law, both of which are herewith explicitly approved by each Swiss Borrower.
10.55Intercreditor Agreement. Notwithstanding anything herein to the contrary, the Lien granted to the Applicable Collateral Agent pursuant to any Credit Document and the exercise of any right or remedy in respect of the Collateral by the Applicable Collateral Agent hereunder or under any other Credit Document are subject to the provisions of the Intercreditor Agreement. In the event of any conflict between the terms of the Intercreditor Agreement, this Agreement and any other Credit Document, the terms of the Intercreditor Agreement shall govern and control with respect to any right or remedy. Without limiting the generality of the foregoing, and notwithstanding anything herein to the contrary, all rights and remedies with respect to the Collateral of the Applicable Collateral Agent (and the Secured Parties) shall be subject to the terms of the Intercreditor Agreement, and no Credit Party shall be required hereunder or under any Credit Document to take any action with respect to the Collateral that is inconsistent with such Credit Parties’ obligations under the Fixed Asset Facility entered into on the date hereof. The Administrative Agent may not require any Credit Party to take any action with respect to the creation, perfection or priority of its security interest in the Collateral, whether pursuant to the express terms hereof or of any other Credit Document or pursuant to the further assurance provisions hereof or any other Credit Document, to the extent that such action would be violative of the Intercreditor Agreement or such Credit Party’s obligations under the Fixed Asset Facility entered into on the date hereof. The delivery of any Collateral to the collateral agent under the Fixed Asset Facility entered into on the date hereof pursuant to the Fixed Asset Facility entered into on the date hereof shall satisfy any delivery requirement hereunder or under any other Credit Document to the extent that such delivery is consistent with the terms of the Intercreditor Agreement. The override provisions under this Section 10.24 shall not apply to any Credit Documents that have been notarized by a German notary.
10.56Contribution and Indemnification Among the Borrowers. Each Borrower is obligated to repay the Obligations as a joint and several obligor under this Agreement to the extent provided in Section 10.22. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (such other Borrower, the “Other Borrower” and such payment, an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers and such Other Borrower in an amount, for each of such other Borrowers and the Other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s or Other Borrower’s Allocable Amount (as defined below) and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without
(a) rendering such Borrower “insolvent” within the meaning of Section 101(31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. All rights and claims of contribution, indemnification, and reimbursement under this Section shall be subordinate in right of payment to the prior payment in full of the Obligations. The provisions of this Section shall, to the extent expressly inconsistent with any provision in any Credit Document, supersede such inconsistent provision.
10.57Express Waivers by Borrowers in Respect of Cross Guaranties and Cross Collateralization. Each Borrower agrees as follows:
(a)Each Borrower hereby waives: (i) notice of acceptance of this Agreement; (ii) notice of the making of any Loans, the issuance of any Letter of Credit or any other financial accommodations made or extended under the Credit Documents or the creation or existence of any Obligations; (iii) notice of the amount of the Obligations, subject, however, to such Borrower’s right to make inquiry of the Administrative Agent to ascertain the amount of the Obligations at any reasonable time; (iv) notice of any adverse change in the financial condition of any other Borrower or of any other fact that might increase such Borrower’s risk with respect to such other Borrower under the Credit Documents; (v) notice of presentment for payment, demand, protest, and notice thereof as to any promissory notes or other instruments among the Credit Documents; and (vi) all other notices (except if such notice is specifically required to be given to such Borrower hereunder or under any of the other Credit Documents to which such Borrower is a party) and demands to which such Borrower might otherwise be entitled;
(b)Each Borrower hereby waives the right by statute or otherwise to require an Agent or any Lender to institute suit against any other Borrower or to exhaust any rights and remedies which an Agent or any Lender has or may have against any other Borrower. Each Borrower further waives any defense arising by reason of any disability or other defense of any other Borrower (other than the defense of payment in full) or by reason of the cessation from any cause whatsoever of the liability of any such Borrower in respect thereof;
(c)Each Borrower hereby waives and agrees not to assert against any Agent, any Lender, or any Issuing Bank: (i) any defense (legal or equitable) other than a defense of payment, set-off, counterclaim, or claim which such Borrower may now or at any time hereafter have against any other Borrower or any other party liable under the Credit Documents; (ii) any defense, set-off, counterclaim, or claim of any kind or nature available to any other Borrower (other than a defense of payment) against any Agent, any Lender, or any Issuing Bank, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Obligations or any security therefor; (iii) any right or defense arising by reason of any claim or defense based upon an election of remedies by any Agent, any Lender, or any Issuing Bank under any applicable law; (iv) the benefit of any statute of limitations affecting any other Borrower’s liability hereunder;
(d)Each Borrower consents and agrees that, without notice to or by such Borrower and without affecting or impairing the obligations of such Borrower hereunder, the Agents may (subject to any requirement for consent of any of the Lenders to the extent required by this Agreement), by action or inaction: (i) compromise, settle, extend the duration or the time for the payment of, or discharge the performance of, or may refuse to or otherwise not enforce the Issuer Documents; (ii) release all or any one or more parties to any one or more of the Issuer Documents
or grant other indulgences to any other Borrower in respect thereof; (iii) amend or modify in any manner and at any time (or from time to time) any of the Issuer Documents; or (iv) release or substitute any Person liable for payment of the Obligations, or enforce, exchange, release, or waive any security for the Obligations; and
(e)Each Borrower represents and warrants to the Agents and the Lenders that such Borrower is currently informed of the financial condition of all other Borrowers and all other circumstances which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Obligations. Each Borrower further represents and warrants that such Borrower has read and understands the terms and conditions of the Credit Documents. Each Borrower agrees that neither the Agents, any Lender, nor any issuing Bank has any responsibility to inform any Borrower of the financial condition of any other Borrower or of any other circumstances which bear upon the risk of nonpayment or nonperformance of the Obligations.
10.58Acknowledgement Regarding Any Supported QFCs. To the extent that the Credit Documents provide support, through a guarantee or otherwise, for Swap Contracts or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Credit Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):
In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Credit Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Credit Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
10.59Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Credit Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Affected Financial Institution arising under any Credit Document may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
(a)the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
(b)the effects of any Bail-In Action on any such liability, including, if applicable:
(xxi)a reduction in full or in part or cancellation of any such liability;
(xxii)a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Credit Document; or
(xxiii)the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority.
10.60Canadian Anti-Money Laundering Legislation.
(a)Each Credit Party acknowledges that, pursuant to the Canadian Anti-Money Laundering & Anti-Terrorism Legislation and other “know your client” laws (collectively, including any guidelines or orders thereunder, “AML Legislation”), the Secured Parties may be required to obtain, verify and record information regarding the Credit Parties and their respective directors, authorized signing officers, direct or indirect shareholders or other Persons in control of the Credit Parties, and the transactions contemplated hereby. Each Credit Party shall promptly provide all such information, including supporting documentation and other evidence, as may be reasonably requested by any Secured Party or any prospective assignee or participant of a Secured Party, in order to comply with any applicable AML Legislation, whether now or hereafter in existence.
(b)If an Agent has ascertained the identity of any Credit Party or any authorized signatories of any Credit Party for the purposes of applicable AML Legislation, then the Agent:
(xxiv)shall be deemed to have done so as an agent for each Secured Party, and this Agreement shall constitute a “written agreement” in such regard between each Secured Party and the Agent within the meaning of the applicable AML Legislation; and
(xxv)shall provide to each Secured Party copies of all information obtained in such regard without any representation or warranty as to its accuracy or completeness.
(c)Notwithstanding the preceding sentence and except as may otherwise be agreed in writing, each of the Secured Parties agrees that the Agent has no obligation to ascertain the identity of the Credit Parties or any authorized signatories of the Credit Parties on behalf of any Secured Party, or to confirm the completeness or accuracy of any information it obtains from any Credit Party or any such authorized signatory in doing so.
10.61Spanish Formalities.
(a)Spanish Public Document: At the reasonable request of the Administrative Agent, this Agreement (as well as any amendments hereto or thereto and any Spanish Joinder Agreement), this Agreement, the Intercreditor Agreement, each Spanish Collateral Document, as
well as any amendments hereto or thereto, shall, be formalized as a Spanish Public Document. At the reasonable request of the Agents, each Spanish Credit Party also undertakes to grant any public or private document required for the purposes of or in relation to such Spanish Public Document. Any costs and expenses relating to such formalization shall be paid and satisfied by the Spanish Credit Party in accordance with this Agreement. The costs of issuance of the first copies (with and without enforcement title) of such Spanish Public Document shall be borne by the Spanish Credit Party and the cost regarding the issuance of additional copies will be borne by the Party requesting such additional copies. Each Spanish Credit Party undertakes that the Spanish Public Document shall state any conditions that any of the Agents reasonably considers necessary or convenient in respect of the enforceability of the Credit Documents referred to in article 517 et seq of the Spanish Civil Procedural Law.
(b)Executive Proceedings (i) For the purpose of art. 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that: (A) the amount due and payable under the Credit Documents that may be claimed in any executive proceedings will be contained in a certificate setting out the relevant calculations and determinations provided by the relevant Agent and will be based on the accounts maintained by such Agent in connection with this Agreement; (B) the Agent and/or each Lender may (at the cost of the relevant Spanish Credit Party) have the certificate notarized evidencing that the calculations and determinations have been effected; and
(C) the Agent and/or the Lenders may claim the total amount of the principal and interest due if there is a default in the repayment of any instalment of principal or interest. (ii) The Agent and/or the Lenders may start, where applicable, executive proceedings (procedimiento ejecutivo) in Spain, in connection with or relating to this Agreement or the relevant Spanish Joinder Agreement, by providing to the relevant court the documents specified in article 573 of the Spanish Civil Procedural Act, namely: (A) an original notarial copy of this Agreement or the relevant Spanish Joinder Agreement; (B) a notarial document (acta notarial) incorporating the certificate of the Agent and/or the Lenders referred to in Section 10.30(b)(i)(A) for the purposes of Article 572 of the Spanish Civil Procedural Act; and (B) evidence that the relevant obligor has been notified of the amount which is due and payable resulting from the certificate. (iii) The Spanish Credit Party hereby expressly authorises the Agents (and each Lender, as appropriate) to request and obtain certificates and documents issued by the notary who has formalised this Agreement (or any accession deed or amendment thereto) in order to evidence its compliance with the entries of his registry-book and the relevant entry date for the purpose of numbers 4º or 5º (as applicable) of Article 517 of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the Spanish Credit Party. (iv) For the purposes of article
540.2 of the Spanish Civil Procedural Law, the Spanish Credit Parties acknowledge and accept that, provided that the relevant assignment, transfer or change of Lenders has been made in accordance with the terms of this Agreement, any assignment, transfer or change of Lenders shall be duly and sufficiently evidenced to any Spanish court by means of a certificate issued by any of the Agents confirming who the Lenders are in each moment, and therefore, those who are certified as Lenders by such Agent shall be able to initiate enforcement in Spain through procedimiento ejecutivo without further evidence being required. (v) Notwithstanding the provisions of Section 10.14 (Governing Law) above, none of the Lenders will be prevented from initiating enforcement proceedings before the Spanish courts against the Spanish Credit Parties, which is hereby expressly acknowledged and accepted by the Spanish Credit Parties.
10.62English Language. The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only (except if another language is required under any applicable Requirement of Law) and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only. Les parties aux présentes confirment que c’est leur
volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement (sauf si une autre langue est requise en vertu d’une loi applicable).
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED, as the
Parent Borrower and a Guarantor
By /s/ Jeffrey Rutherford
Name: Jeffrey Rutherford
Title: Executive Vice President and Chief Financial Officer
DIEBOLD NIXDORF CANADA, LIMITED, as a
Borrower and Guarantor
By /s/ Jonathan Leiken
Name: Jonathan Leiken
Title: Vice President and Secretary
DIEBOLD NIXDORF BV (BELGIUM), as a
Borrower and Guarantor
By /s/ Helena Mueller
Name: Helena Mueller Title: Managing Director
DIEBOLD NIXDORF B.V. (NETHERLANDS),
as a Borrower and Guarantor
By /s/ Elizabeth Radigan
Name: Elizabeth Radigan Title: Authorized Signatory
DIEBOLD NIXDORF S.A.S., as a Borrower and Guarantor
By /s/ Hervé Grelet
Name: Hervé Grelet Title: duly authorized
WINCOR NIXDORF INTERNATIONAL
GMBH, as a Borrower and Guarantor
By /s/ Olaf Heyden
Name: Olaf Heyden
Title: Managing Director
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Signature Page to Diebold Revolving Credit Agreement |
DIEBOLD NIXDORF SYSTEMS GMBH, as a
Borrower and Guarantor
By /s/ Jörn Förster
Name: Jörn Förster
Title: Managing Director
DIEBOLD NIXDORF DEUTSCHLAND GMBH,
as a Borrower and Guarantor
By /s/ Roland Sorke
Name: Roland Sorke Title: Managing Director
DIEBOLD NIXDORF GLOBAL LOGISTICS
GMBH, as a Borrower and Guarantor
By /s/ Christina Wieber
Name: Christina Wieber Title: Managing Director
DIEBOLD NIXDORF S.L., as a Borrower and Guarantor
By /s/ Christina Wieber
Name: Christina Wieber Title: Managing Director
DIEBOLD NIXDORF S.R.L., as a Borrower and Guarantor
By /s/ Jonathan Leiken
Name: Jonathan Leiken Title: Authorized Signatory
Place of Execution: United States of America
DIEBOLD NIXDORF SP. Z O.O., as a Borrower
and Guarantor
By /s/ Adrian Gawryś
Name: Adrian Gawryś Title: Managing Director
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Signature Page to Diebold Revolving Credit Agreement |
DIEBOLD NIXDORF AB, as a Borrower and Guarantor
By /s/ René Lauxtermann
Name: René Lauxtermann Title: Director
DIEBOLD NIXDORF (UK) LIMITED, as a
Borrower
By /s/ Paul George Young
Name: Paul George Young Title: Director
DIEBOLD NIXDORF (UK) LIMITED, as a
Guarantor
By /s/ Paul George Young
Name: Paul George Young Title: Director
DIEBOLD SELF-SERVICE SOLUTIONS
S.AR.L, as a Borrower
By /s/ James Barna
Name: James Barna
Title: Vice President and Treasurer
DIEBOLD GLOBAL FINANCE
CORPORATION, as a Guarantor
By /s/ James Barna
Name: James Barna
Title: Vice President and Treasurer
DIEBOLD HOLDING COMPANY, LLC, as a
Guarantor
By /s/ James Barna
Name: James Barna
Title: Vice President and Treasurer
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Signature Page to Diebold Revolving Credit Agreement |
DIEBOLD SST HOLDING COMPANY, LLC, as
a Guarantor
By /s/ James Barna
Name: James Barna
Title: Vice President and Treasurer
GRIFFIN TECHNOLOGY INCORPORATED, as
a Guarantor
By /s/ Elizabeth Radigan
Name: Elizabeth Radigan
Title: Vice President and Secretary
DIEBOLD SELF-SERVICE SYSTEMS, as a
Guarantor
By /s/ James Barna
Name: James Barna
Title: Vice President and Treasurer
DIEBOLD NIXDORF TECHNOLOGY
FINANCE, LLC, as a Guarantor
By /s/ James Barna
Name: James Barna
Title: Vice President and Treasurer
DIEBOLD CANADA HOLDING COMPANY
INC., as a Guarantor
By /s/ Jonathan Leiken
Name: Jonathan Leiken
Title: Vice President and Secretary
DIEBOLD NIXDORF GLOBAL HOLDING
B.V., as a Guarantor
By /s/ Elizabeth Radigan
Name: Elizabeth Radigan Title: Authorized Signatory
DIEBOLD NIXDORF DUTCH HOLDING B.V.,
as a Guarantor
By /s/ Elizabeth Radigan
Name: Elizabeth Radigan Title: Authorized Signatory
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Signature Page to Diebold Revolving Credit Agreement |
DIEBOLD NIXDORF SOFTWARE PARTNER
B.V., as a Guarantor
By /s/ Michael Engel
Name: Michael Engel Title: Managing Director
DIEBOLD NIXDORF SOFTWARE CV, as a
Guarantor, represented by its general partner Diebold Nixdorf Software Partner B.V.
By /s/ Michael Engel
Name: Michael Engel Title: Managing Director
DIEBOLD NIXDORF GLOBAL SOLUTIONS
B.V., as a Guarantor
By /s/ Hendrik Schouten
Name: Hendrik Schouten Title: Managing Director
DIEBOLD NIXDORF HOLDING GERMANY
GMBH, as a Guarantor
By /s/ Olaf Heyden
Name: Olaf Heyden
Title: Managing Director
DIEBOLD NIXDORF LOGISTICS GMBH, as a
Guarantor
By /s/ Christina Wieber
Name: Christina Wieber Title: Managing Director
WINCOR NIXDORF FACILITY GMBH, as a
Guarantor
By /s/ Jörn Förster
Name: Jörn Förster
Title: Managing Director
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Signature Page to Diebold Revolving Credit Agreement |
DIEBOLD NIXDORF REAL ESTATE GMBH &
CO. KG, as a Guarantor, represented by its general partner Diebold Nixdorf Security GmbH
By /s/ Jörn Förster
Name: Jörn Förster
Title: Managing Director
DIEBOLD NIXDORF BUSINESS ADMINISTRATION CENTER GMBH, as a
Guarantor
By /s/ Jörg Kleinschmidt
Name: Jörg Kleinschmidt Title: Managing Director
IP MANAGEMENT GMBH, as a Guarantor
By /s/ Olaf Heyden
Name: Olaf Heyden
Title: Managing Director
DIEBOLD NIXDORF VERMÖGENSVERWALTUNGS GMBH, as a
Guarantor
By /s/ Olaf Heyden
Name: Olaf Heyden
Title: Managing Director
DIEBOLD NIXDORF SECURITY GMBH, as a
Guarantor
By /s/ Jörn Förster
Name: Jörn Förster
Title: Managing Director
DIEBOLD NIXDORF OPERATIONS GMBH, as
a Guarantor
By /s/ Michael Schütt
Name: Michael Schütt Title: Managing Director
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Signature Page to Diebold Revolving Credit Agreement |
DIEBOLD NIXDORF FINANCE GERMANY
GMBH, as a Guarantor
By /s/ Jörn Förster
Name: Jörn Förster
Title: Managing Director
DIEBOLD NIXDORF BPO SP. Z O.O., as a
Guarantor
By /s/ Adrian Gawryś
Name: Adrian Gawryś Title: Managing Director
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Signature Page to Diebold Revolving Credit Agreement |
JPMORGAN CHASE BANK, N.A., as
Administrative Agent and Collateral Agent
By: /s/ Christine Lathrop
Name: Christine Lathrop
Title: Executive Director
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Signature Page to Diebold Revolving Credit Agreement |
| | | | | | | | |
GLAS AMERICAS LLC, as European Collateral Agent |
| By | /s/ Lisha John |
| Name: | Lisha John |
| Title: | Vice President |
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Signature Page to Diebold Revolving Credit Agreement |
[Lenders’ and Issuing Banks’ signature pages on file with the Company.]
EXHIBIT A-1 FUNDING NOTICE
FUNDING NOTICE
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to Section 2.1 of the ABL Credit Agreement, the [Name of applicable Borrower] desires that Lenders make the following [Tranche A][Tranche B][Tranche C] Loans to such Borrower in accordance with the applicable terms and conditions of the ABL Credit Agreement on , 20 (the “Credit Date”) and, in that connection, sets forth below the information as required by Section
2.1 of the ABL Credit Agreement:
(a)The aggregate amount of the proposed Borrowing is [£][CA$][€][$]1 , of which amount [$][CA$][£] consists of [ABR Loans][Canadian Prime Rate Loans][RFR
1 [Tranche A Loans may be denominated only in Dollars and Canadian Dollars. Tranche B Loans may be denominated only in Dollars and Euros. Tranche C Loans may be denominated only in Dollars, Euros and Pounds Sterling.]
Loans] [and [CA$][€][$] consists of Term Benchmark Loans having an initial Interest Period of month[s]2].
Parent Borrower [and the undersigned Borrower] hereby [certifies] [certify] that the following statements are true on the date hereof and shall be true on the Credit Date both before and after giving effect to the proposed Borrowing and to the application of proceeds therefrom:
(xxvi)after making the Revolving Loans requested on the Credit Date, the applicable Revolving Credit Outstandings shall not exceed the applicable Revolving Commitments then in effect;
(xxvii)as of the Credit Date, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the Credit Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date; and
(xxviii)as of the Credit Date, no event has occurred and is continuing or would result from the consummation of the Borrowing contemplated hereby that would constitute an Event of Default or a Default.
Notwithstanding the foregoing, this Funding Notice is conditioned on [condition], in which case this Funding Notice may be revoked or extended by the Borrower if such condition is not satisfied.
[SIGNATURE PAGES FOLLOW]
2 To be 1, 3 or 6 months (or other period agreed to between the Parent Borrower and the Administrative Agent which is available to all relevant Lenders) for a Term Benchmark Loan (other than any CDOR Rate Borrowing). To be 1, 2 or 3 months (or other period agreed to between the Parent Borrower and the Administrative Agent which is available to all relevant Lenders) for a Term Benchmark Loan that is a CDOR Rate Borrowing.
IN WITNESS WHEREOF, the Parent Borrower [and the undersigned Borrower] [has] [have] caused this Notice to be executed and delivered by [its] [their] duly Authorized Officer[s] as of the date set forth below.
, 20
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title:
[ ]
By: Name:
Title:
EXHIBIT A-2
[FORM OF] CONVERSION/CONTINUATION NOTICE
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
[Pursuant to Section 2.8 of the ABL Credit Agreement, the [Name of Borrower] hereby gives the Administrative Agent notice, irrevocably, that it desires to convert or to continue the following [Tranche A][Tranche B][Tranche C] Loans, each such conversion and/or continuation to be effective as of
, 20 :
Revolving Loans:
[CA$][€][$] [ , , ] Term Benchmark Loans with an Interest Period ending on to be continued with Interest Period of month(s)3
[$][CA$][£] [ , , ] [ABR Loans][Canadian Prime Rate Loans][RFR Loans] to be converted to Term Benchmark Loans with Interest Period of month(s)
[CA$][$] [ , , ] Term Benchmark Loans with an Interest Period ending on to be converted to [ABR Loans][Canadian Prime Rate Loans].
[The applicable Borrower hereby certifies that as of the date hereof, (i) no Default or Event of Default has occurred and is continuing, and (ii) the continuation of, or conversion of any Loan into, a Term Benchmark Loan complies with the provisions of Sections 2.17 and 2.18 of the ABL Credit Agreement.]4
[SIGNATURE PAGES FOLLOW]
3 To be 1, 3 or 6 months (or other period agreed to by the Administrative Agent which is available to all relevant Lenders) for a Term Benchmark Loan (other than any CDOR Rate Borrowing). To be 1, 2 or 3 months (or other period agreed to by the Administrative Agent which is available to all relevant Lenders) for a Term Benchmark Loan that is a CDOR Rate Borrowing.
4 To be inserted for any conversion to Term Benchmark Loans.
IN WITNESS WHEREOF, the [Name of Borrower] has caused this Notice to be executed and delivered by its duly Authorized Officer as of the date set forth below.
[Name of Borrower]
By: Name:
Title:
The applicable Borrower shall deliver this Conversion/Continuation Notice to the Agent no later than 10:00 a.m. (Local Time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion of a Loan denominated in Dollars to an ABR Loan or a conversion of a Loan denominated in Canadian Dollars to a Canadian Prime Rate Loan) and no later than 10:00 a.m. (Local Time) at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Term Benchmark Loan).
EXHIBIT A-3
[FORM OF] ISSUANCE NOTICE
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to Section 2.3 of the ABL Credit Agreement, the Parent Borrower desires a Tranche A Letter of Credit to be issued by [INSERT NAME OF APPLICABLE ISSUING BANK] under the Revolving Credit Facility in accordance with the terms and conditions of the ABL Credit Agreement on
, 20 (the “Credit Date”) in an aggregate face amount of [£][CA$][€][$] .5
The Parent Borrower hereby gives the Administrative Agent notice that the undersigned hereby requests a Letter of Credit under the ABL Credit Agreement and, in that connection, sets forth below the following information as required by Section 2.3 of the ABL Credit Agreement:
(a)the date on which such Letter of Credit will expire is , 20 .
5 Issuance Notice to be submitted no later than 11:00 am (Local Time) on the third Business Day prior to the requested issuance of such Letter of Credit.
(b)such Letter of Credit shall be issued for the benefit of [INSERT NAME OF APPLICABLE PERSON].
The Parent Borrower hereby certifies that the following statements are true on the date hereof and shall be true on the Credit Date both before and after giving effect to the proposed Borrowing and to the application of proceeds therefrom:
(lxxxvi)after issuing such Letter of Credit requested on the Credit Date, the applicable Revolving Credit Outstandings shall not exceed the applicable Revolving Commitments then in effect or result in a breach of any of the Tranche A Borrowing Conditions;
(lxxxvii)as of the Credit Date, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the Credit Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date;
(lxxxviii)as of such Credit Date, no event has occurred and is continuing or would result from the consummation of the issuance contemplated hereby that would constitute an Event of Default or a Default.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parent Borrower has caused this Notice to be executed and delivered by its duly Authorized Officer as of the date set forth below.
, 20
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title:
EXHIBIT A-4
SWING LINE REQUEST
JPMorgan Chase Bank, N.A.,
as Administrative Agent under the
ABL Credit Agreement referred to below
,
Attention: [ ]
Re: DIEBOLD NIXDORF, INCORPORATED
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
The Parent Borrower hereby gives the Administrative Agent notice, irrevocably, pursuant to Section 2.2 of the ABL Credit Agreement that the undersigned hereby requests that the Tranche A Swing Line Lender make Swing Line Loans available to the Parent Borrower under the Revolving Credit Facility pursuant to the ABL Credit Agreement and, in that connection, sets forth below the information
relating to such Tranche A Swing Line Loans (the “Proposed Advance”) as required by Section 2.2 of the ABL Credit Agreement:
A.The date of the Proposed Advance is , 20[ ] (the “Credit Date”).
B.The aggregate amount of the Proposed Advance is $ .
Parent Borrower hereby certifies that the following statements are true on the date hereof and shall be true on the Credit Date both before and after giving effect to the Proposed Advance and to the application of the proceeds therefrom:
A.as of the Credit Date, the representations and warranties contained in each of the Credit Documents are true and correct in all material respects on and as of the Credit Date to the same extent as though made on and as of such date, except to the extent such representations and warranties specifically relate to an earlier date, in which case such representations and warranties are true and correct in all material respects on and as of such earlier date; and
B.as of the Credit Date, no event has occurred and is continuing or would result from the consummation of the Borrowing contemplated hereby that would constitute an Event of Default or a Default.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF the Parent Borrower has caused this Swing Line Request to be executed and delivered by its duly Authorized Officer as of the date set forth below.
, 20
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title:
EXHIBIT B-1 REVOLVING LOAN NOTE
REVOLVING LOAN NOTE
$[ , , ]
, 20 New York, New York
FOR VALUE RECEIVED, each of [Name of applicable Borrowers], jointly and severally, promises to pay to the order of [NAME OF LENDER] (“Payee”) or its registered assigns, on or before
, 20 , the lesser of (a) Dollars ($[ , , ]) and (b) the aggregate unpaid principal amount of all advances made by Payee to the Borrowers as [Tranche A][Tranche B][Tranche C] Loans under the ABL Credit Agreement referred to below.
The Borrowers also promise to pay interest on the unpaid principal amount hereof, from the date hereof until such principal amount is paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Both principal and interest are payable in the currency in which the obligation being paid is denominated to the Administrative Agent, at the address from time to time specified by the Administrative Agent to the Borrowers in writing, in immediately available funds.
This Note is one of the “Revolving Loan Notes” in the aggregate principal amount of
$[ ] and is issued pursuant to and entitled to the benefits of the ABL Credit Agreement and is secured as provided in the Collateral Documents, to each of which reference is hereby made for a more complete statement of the terms and conditions under which the Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be made in the lawful currency in which the obligation being paid is denominated in same day funds at the Principal Office of the Administrative Agent or at such other place as shall be designated in writing for such purpose in accordance with the terms of the ABL Credit Agreement. Unless and until an Assignment Agreement effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by the Administrative Agent and recorded in the Register, the Borrowers, each Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of the Borrowers hereunder with respect to payments of principal of or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the option of the Borrowers, each as provided in the ABL Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE BORROWERS AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the ABL Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided in the ABL Credit Agreement.
No reference herein to the ABL Credit Agreement and no provision of this Note or the ABL Credit Agreement shall alter or impair the obligations of the Borrowers, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
The Borrowers promise to pay, following receipt of a reasonably detailed written invoice, all out- of-pocket costs and expenses, including reasonable attorneys’ fees, all as provided in the ABL Credit Agreement, incurred in the collection and enforcement of this Note. The Borrowers and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, the Borrowers have caused this Note to be duly executed and delivered by their respective duly Authorized Officers as of the date and at the place first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title: [OTHER BORROWERS]6
6 To include each Borrower under the applicable Tranche.
TRANSACTIONS ON REVOLVING LOAN NOTE
Amount of Loan Made This Date
Amount of Principal Paid This Date
Outstanding Principal Balance This Date
EXHIBIT B-2 SWING LINE NOTE
SWING LINE NOTE
$[ , , ]
, 20 New York, New York
FOR VALUE RECEIVED, Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), promises to pay to the order of [NAME OF LENDER] (“Payee”) or its registered assigns, on or before , 20 , the lesser of (a) Dollars ($[ , , ]) and (b) the aggregate unpaid principal amount of all advances made by Payee to the Parent Borrower as Tranche A Swing Line Loans under the ABL Credit Agreement referred to below.
The Parent Borrower also promises to pay interest on the unpaid principal amount hereof, from the date hereof until such principal amount is paid in full, at the rates and at the times which shall be determined in accordance with the provisions of that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Both principal and interest are payable in the currency in which the obligation being paid is denominated to the Administrative Agent, at the address from time to time specified by the Administrative Agent to the Parent Borrower in writing, in immediately available funds.
This Note is one of the “Swing Line Notes” in the aggregate principal amount of $[ ] and is issued pursuant to and entitled to the benefits of the ABL Credit Agreement and is secured as provided in the Collateral Documents, to each of which reference is hereby made for a more complete statement of the terms and conditions under which the Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be made in lawful money of the United States of America in same day funds at the Principal Office of the Administrative Agent or at such other place as shall be designated in writing for such purpose in accordance with the terms of the ABL Credit Agreement. Unless and until an Assignment Agreement effecting the assignment or transfer of the obligations evidenced hereby shall have been accepted by the Administrative Agent and recorded in the Register, the Parent Borrower, each Agent and Lenders shall be entitled to deem and treat Payee as the owner and holder of this Note and the obligations evidenced hereby. Payee hereby agrees, by its acceptance hereof, that before disposing of this Note or any part hereof it will make a notation hereon of all principal payments previously made hereunder and of the date to which interest hereon has been paid; provided, the failure to make a notation of any payment made on this Note shall not limit or otherwise affect the obligations of the Parent Borrower hereunder with respect to payments of principal of or interest on this Note.
This Note is subject to mandatory prepayment and to prepayment at the option of the Parent Borrower, each as provided in the ABL Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF THE PARENT BORROWER AND PAYEE HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Upon the occurrence of an Event of Default, the unpaid balance of the principal amount of this Note, together with all accrued and unpaid interest thereon, may become, or may be declared to be, due and payable in the manner, upon the conditions and with the effect provided in the ABL Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided in the ABL Credit Agreement.
No reference herein to the ABL Credit Agreement and no provision of this Note or the ABL Credit Agreement shall alter or impair the obligations of the Parent Borrower, which are absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, and in the currency herein prescribed.
The Parent Borrower promises to pay, following receipt of a reasonably detailed written invoice, all out-of-pocket costs and expenses, including reasonable attorneys’ fees, all as provided in the ABL Credit Agreement, incurred in the collection and enforcement of this Note. The Parent Borrower and any endorsers of this Note hereby consent to renewals and extensions of time at or after the maturity hereof, without notice, and hereby waive diligence, presentment, protest, demand notice of every kind and, to the full extent permitted by law, the right to plead any statute of limitations as a defense to any demand hereunder.
IN WITNESS WHEREOF, the Parent Borrower has caused this Note to be duly executed and delivered by its duly Authorized Officer as of the date and at the place first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title:
TRANSACTIONS ON SWING LINE NOTE
Amount of Loan Made This Date
Amount of Principal Paid This Date
Outstanding Principal Balance This Date
EXHIBIT C
[FORM OF] COMPLIANCE CERTIFICATE THE UNDERSIGNED HEREBY CERTIFIES AS FOLLOWS:
1.I am the [chief financial officer] of DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Parent Borrower”).
2.I have reviewed the terms of that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
3.The examination described in paragraph 2 above did not disclose, and I have no knowledge of, the existence of any condition or event which constitutes an Event of Default or Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate, except as set forth in a separate attachment, if any, to this Certificate, describing in detail, the nature of the condition or event, the period during which it has existed and the action which the applicable Borrower has taken, is taking, or proposes to take with respect to each such condition or event.
4.The foregoing certifications, together with the computations set forth in Annex A hereto and the financial statements delivered with this Certificate in support hereof, are made and delivered
, 20 pursuant to Section 5.1(c) of the ABL Credit Agreement.
5.The financial statements delivered herewith fairly present, in all material respects, the financial condition of Parent Borrower and its Subsidiaries as at the dates indicated and the results of their operations and their cashflows for the periods indicated [subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure].7
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title:
7 Include in connection with delivery of quarterly financial statements.
ANNEX A TO COMPLIANCE CERTIFICATE
FOR THE FISCAL [QUARTER] [YEAR] ENDING , 20 .
1.[EBITDA: (i) + (ii) = $[ , , ]
(xxix)EBIT:
$[ , , ]
(xxx)
(c)Depreciation expenses determined in accordance with GAAP:
$[ , , ], plus
(d)Amortization expenses (including amortization of intangibles, deferred financing fees and actuarial gains and losses related to pensions and other post- employment benefits, but excluding amortization of prepaid cash expenses that were paid in a prior period) determined in accordance with GAAP:
$[ , , ]
2.EBIT: (i) - (ii) = $[ , , ]
(i)
(a)Consolidated Net Income:
$[ , , ], plus
(b)Taxes based on income, profits or capital, including, without limitation, state franchise and similar Taxes and foreign withholding Taxes, and Consolidated Interest Expense (without, however, giving effect to the proviso to the definition thereof), and any extraordinary or non-recurring losses and charges and any non-cash losses and non-cash charges and related tax effects in accordance with GAAP:
$[ , , ], plus
(c)[reserved], plus
(d)(1) fees, costs and expenses incurred in connection with Acquisitions, (2) non-recurring costs, charges and expenses relating to (x) the exercise of options and (y) stock issued by the target of an Acquisition, (3) any fees, costs, expenses or charges related to any equity offering, Acquisition, Disposition or other Investment permitted under the ABL Credit Agreement, recapitalization or incurrence or amendments of Indebtedness permitted to be made under (or related to any refinancing of or amendment to) the ABL Credit Agreement (whether or not successful) and (4) any costs or expenses incurred by the Parent Borrower or a Subsidiary pursuant to any management equity plan or stock option plan or any other management or employee benefit plan or agreement,
any stock subscription or shareholder agreement, to the extent that such costs or expenses are funded with cash proceeds contributed to the capital of the Parent Borrower or Net Cash Proceeds of an issuance of Equity Interests of the Parent Borrower:
$[ , , ], plus
(e)any loss realized as a result of the cumulative effect of a change in accounting principles:
$[ , , ], plus
(f)any fees, expenses, charges or losses that are covered by indemnification or other reimbursement provisions or insurance in connection with any Acquisition, Disposition, Investment, sale, conveyance, transfer or other disposition of assets permitted under the ABL Credit Agreement, to the extent actually reimbursed, or, if the Parent Borrower has determined that there is a reasonable basis for indemnification or reimbursement and only to the extent that such amount is in fact indemnified or reimbursed within 365 days of such determination:
$[ , , ], plus
(g)synergies and cost-savings of the Parent Borrower and its Subsidiaries related to operational changes, restructuring, reorganizations, operating expense reductions, operating improvements and similar restructuring initiatives (“Synergies”) and non-recurring costs, charges, accruals, reserves or expenses of the Parent Borrower and its Subsidiaries attributable or related to such Synergies (“Costs of Synergies”), in each case relating to any Acquisition, any Disposition by the Parent Borrower or its Subsidiaries outside of the ordinary course of business or any initiatives relating to restructuring, reorganization, operating expense reductions, operating improvements and similar restructuring initiatives enacted after the Closing Date (it being understood any such increases pursuant to this clause (g) related to an Acquisition or Disposition shall only be available subject to the consummation of the Acquisition or Disposition and not in contemplation thereof),in each case that are set forth in a certificate of a Financial Officer of the Parent Borrower and that are factually supportable (in the good faith determination of the Parent Borrower, as certified in the applicable certificate) and, in the case of Synergies, are reasonably anticipated by the Parent Borrower in good faith to result from actions taken or with respect to which substantial steps have been taken or are expected to be taken within 18 months following the consummation of the Acquisition or Disposition or the decision implement such restructuring initiative (calculated on a Pro Forma Basis and net of the amount of actual benefits realized during such period from such actions to the extent already included in consolidated net income for such period); provided that the aggregate amount added back in reliance on this clause (g) shall not exceed 10% of EBITDA in a given four-fiscal quarter period (calculated before giving effect to any addbacks and adjustments in this clause (g)):
$[ , , ]
(ii)
(a)(1) the income (or loss) of any Person (other than a Subsidiary of the Parent Borrower) in which any Person other than the Parent Borrower or any of its Subsidiaries has a joint interest or a partnership interest or other ownership interest, except to the extent that any such income is actually paid to or otherwise received in cash by the Parent Borrower or any of its Subsidiaries during such period, (2) the income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of the Parent Borrower or is merged into or consolidated or amalgamated with the Parent Borrower or any of its Subsidiaries or that Person’s assets are acquired by the Parent Borrower or any of its Subsidiaries, except as otherwise provided in the definitions of “EBIT” and “Pro Forma Basis” in the ABL Credit Agreement, (3) gains (or losses) from the sale, exchange, transfer or other disposition of property or assets not in the ordinary course of business of the Parent Borrower and its Subsidiaries, and related tax effects in accordance with GAAP, (4) any other extraordinary or non-recurring gains or other income not from the continuing operations of the Parent Borrower or its Subsidiaries, any non-cash gains for such period, and in each case, related tax effects in accordance with GAAP and (vi) the income of any Subsidiary of the Parent Borrower (other than Subsidiaries which are not material in the aggregate as agreed upon between the Parent Borrower and the Administrative Agent) to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that income is not at the time permitted by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary:
$[ , , ], plus
(b)without duplication, the aggregate amount of cash payments made in respect of any non-cash accrual, reserve or other non-cash charge or expense accounted for in a prior period which were added to Consolidated Net Income to determine EBIT for such prior period and which do not otherwise reduce Consolidated Net Income for the current period:
$[ , , ], plus
(c)any gain realized as a result of the cumulative effect of a change in accounting principles:
$[ , , ]]
3.Consolidated Net Income: the consolidated net income (or loss) of the Company and its Subsidiaries for such period determined in conformity with GAAP.
$[ , , ]
4.Fixed Charge Coverage Ratio: (i)/(ii) = = $[ , , ]
(xxxi)(a) EBITDA for the four Fiscal Quarter period then ending:
$[ , , ], minus
(b)Consolidated Capital Expenditures made in cash during such four Fiscal Quarter period to the extent not financed with the proceeds of Indebtedness:
$[ , , ], minus
(c)cash taxes actually paid by the Parent Borrower and its Subsidiaries during such four Fiscal Quarter period:
$[ , , ]
(xxxii)Consolidated Fixed Charges for such four Fiscal Quarter period:
$[ , , ]
EXHIBIT D-1
EXHIBIT D-1A
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to the provisions of Section 2.19(k) of the ABL Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Parent Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, (iv) it is not a controlled foreign corporation related to the Parent Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code, and (v) the interest payments on the Loan(s) are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Parent Borrower with a certificate of its non-U.S. person status on Internal Revenue Service Form W-8BEN or Internal Revenue
Service Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform the Parent Borrower and the Administrative Agent and deliver promptly to the Parent Borrower and the Administrative Agent an updated certificate or other appropriate documentation (including any new documentation reasonably requested by the Parent Borrower or the Administrative Agent) or promptly notify the Parent Borrower or the Administrative Agent of its inability to do so, and (2) the undersigned shall have at all times furnished the Parent Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or at such times are as reasonably requested by the Parent Borrower and the Administrative Agent.
[Signature Page Follows]
[NAME OF LENDER]
By: Name:
Title:
Date: , 20[ ]
EXHIBIT D-1B
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to the provisions of Section 2.19(k) of the ABL Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to the ABL Credit Agreement or any other Credit Document, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its partners/members is a ten percent shareholder of Parent Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, (v) none of its partners/members is a controlled foreign corporation related to the Parent Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code, and (vi) the interest payments on the Loan(s) are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished the Administrative Agent and the Parent Borrower with Internal Revenue Service Form W-8IMY accompanied by an Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable, from each of its partners/members claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform the Parent Borrower and the Administrative Agent and deliver promptly to the Parent Borrower and the Administrative Agent an updated certificate or other appropriate documentation (including any new documentation reasonably requested by Parent Borrower or the Administrative Agent) or promptly notify the Parent Borrower or the Administrative Agent of its inability to do so, and (2) the undersigned shall have at all times furnished the Parent Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or at such times are as reasonably requested by the Parent Borrower and the Administrative Agent.
[Signature Page Follows]
[NAME OF LENDER]
By: Name:
Title:
Date: , 20[ ]
EXHIBIT D-1C
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to the provisions of Section 2.19(k) of the ABL Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iii) it is not a ten percent shareholder of the Parent Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, (iv) it is not a controlled foreign corporation related to the Parent Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code, and (v) the interest payments with respect to such participation are not effectively connected with the undersigned’s conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with a certificate of its non-U.S. person status on an Internal Revenue Service Form W-8BEN or Internal Revenue Service Form W-8BEN-E, as applicable. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so
inform such Lender and deliver promptly to such Lender an updated certificate or other appropriate documentation (including any new documentation reasonably requested by such Lender) or promptly notify such Lender of its inability to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or at such times are as reasonably requested by such Lender.
[Signature Page Follows]
[NAME OF PARTICIPANT]
By: Name:
Title:
Date: , 20[ ]
EXHIBIT D-1D
UNITED STATES TAX COMPLIANCE CERTIFICATE
(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to the provisions of Section 2.19(k) of the ABL Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, (iv) none of its partners/members is a ten percent shareholder of the Parent Borrower within the meaning of Section 871(h)(3)(B) of the Internal Revenue Code, (v) none of its partners/members is a controlled foreign corporation related to the Parent Borrower as described in Section 881(c)(3)(C) of the Internal Revenue Code, and (vi) the interest payments with respect to such participation are not effectively connected with the undersigned’s or its partners/members’ conduct of a U.S. trade or business.
The undersigned has furnished its participating Lender with Internal Revenue Service Form W- 8IMY accompanied by an Internal Revenue Service Form W-8BEN or Internal Revenue Service Form
W-8BEN-E, as applicable, from each of its partners/members claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, or if a lapse in time or change in circumstances renders the information on this certificate obsolete, expired or inaccurate in any material respect, the undersigned shall promptly so inform such Lender and deliver promptly to such Lender an updated certificate or other appropriate documentation (including any new documentation reasonably requested by such Lender) or promptly notify such Lender of its inability to do so, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned or at such times are as reasonably requested by such Lender.
[Signature Page Follows]
[NAME OF PARTICIPANT]
By: Name:
Title:
Date: , 20[ ]
Exhibit D-2
Italian Lender Tax Certificate
Part 1 – to be completed by Lenders that fall under paragraphs (d)–(g) of the definition of Italian Tax Qualifying Lender under the ABL Credit Agreement (as defined below)
SELF-DECLARATION FORM
In connection with the Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, the US Subsidiary Guarantors, the European Guarantors, the European Borrowers, the Canadian Borrower, the Administrative Agent, the Collateral Agent, the European Collateral Agent, and the various lenders (the “ABL Credit Agreement”), the undersigned [Lender’s legal representative], domiciled at [Lender’s legal representative address], legal representative of [Lender’s Name], with its registered office at [Lender’s registered address]
CONSIDERING THAT
pursuant to article 26, paragraph 5-bis, of Presidential Decree No. 600 of 29 September 1973 as amended by (i) Article 22 of Law Decree No. 91 of 24 June 2014, converted into law by Law No. 144 of 11 August 2014, (ii) Article 10, paragraph 2, of Law Decree No. 133 of 12 September 2014, converted into law by
the Law No. 164 of 11 November 2014, and (iii) Article 6, paragraph 1, of Law Decree No. 3 of 24 January 2015, converted into law by the Law No. 33 of 24 March 2015, and (iv) Article 17, paragraph 2, of Law Decree No 18 of 14 February 2016, converted into law by the Law No. 49 of 8 April 2016, no Italian withholding tax applies to interest payments made by Italian entities to:
1.Credit institutions established in an EU Member State or acting through a Permanent Establishment located in a member state of the European Union;
2.Insurance companies incorporated in an EU Member State and authorized under the legislative provisions of an EU Member State;
3.Institutional investors, whether or not subject to tax, which are established in a country or territory which allows for a satisfactory exchange of information with Italy, to the extent they are subject to regulatory supervision in the place of establishment;
4.Entities listed under Article 2, paragraph 5, numbers from 4) to 23), of Directive 2013/36/EU, DECLARES
To be economically entitled to and the beneficial owner of any interest payment received under the
Finance Document with respect to a commitment amount of [●] (the “Amount”) and: (Please check one of the following four boxes, if applicable)
That [Lender’s Name] is a bank established in an EU Member State or acting through a permanent establishment (i) located in an EU Member State,
That [Lender’s Name] is an insurance company incorporated in an EU Member State and authorized under the legislative provisions of an EU Member State,
That [Lender’s Name] is an institutional investor, whether or not subject to tax, established in a country or territory included within the list provided for by the decrees issued pursuant to Art. 11, paragraph 4, lett. c), Legislative Decree of 1 April 1996, no. 239, as amended and implemented from time to time and therein subject to regulatory supervision,
That [Lender’s Name] is an entity listed under Article 2, paragraph 5, numbers from 4) to 23), of Directive 2013/36/EU,
And that the Lender [or sub-participant and the sub-participation/]lending of the Amount (i) is not subject to the Italian statutory and regulatory provisions on reserved banking or lending activities under Legislative Decree No. 385 of 1 September 1993 or Legislative Decree No. 58 dated 24 February 1998, as the case may be, or (ii), in case it is subject, it complies with, and is not in breach of, the aforesaid provisions.
Place and date of signature:
Signature of Legal Representative
[ ]
For and on behalf of [NAME AND SURNAME]
Part 2 – to be completed by Lenders that fall under paragraph (h) of the definition of Italian Tax Qualifying Lender under the ABL Credit Agreement
AFFIDAVIT – FORM B
Exhibit D-3
French Lender Tax Certificate
Diebold Nixdorf SAS (the “French Borrower”) 3 rue Paul Dautier / 6 avenue Morane Saulnier 78140 Vélizy-Villacoublay, France
In connection with the asset-based revolving credit and guaranty agreement, dated as of December 29, 2022 (as amended, modified and supplemented and in effect from time to time, the “Credit Agreement”), made between, amongst others, (i) Diebold Nixdorf, Incorpo- rated as Parent Borrower, (ii) certain subsidiaries of the Parent Borrower identified therein (in- cluding the Pledgor) as European Borrowers, (iii) Diebold Nixdorf Canada, Limited as Canadian Borrower, (iv) the Lenders party thereto from time to time and (v) JPMorgan Chase Bank, N.A. in various capacities including as Administrative Agent and Collateral Agent, the undersigned, pursuant to Section 2.19(k)(7) of the Credit Agreement, hereby certifies that:
1.it is a “French Tax Qualifying Lender,” as such term is defined in the Credit Agreement; and
2.it will promptly notify the French Borrower if it ceases to be a French Tax Qualifying Lender after the date hereof or if it sells an interest in the Loan made to the French Borrower to a participant which is not a “French Tax Qualifying Lender”.
Yours faithfully,
[●]
By: Name:
Title: Authorised signatory
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
This ASSIGNMENT AND ASSUMPTION AGREEMENT (the “Assignment Agreement”), dated as of the Effective Date (as defined below), is entered into between the Assignor and the Assignee (each as defined below).
The parties hereto hereby agree as follows:
Borrowers Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrow- ers” and each, a “German Borrower”), Diebold Nixdorf AB, a com- pany organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company or- ganized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, regis- tered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self-Service Solu- tions S.ar.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrow- er, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower” and, to- gether with the Parent Borrower and the European Borrower, the “Borrowers”)
Administrative Agent: JPMORGAN CHASE BANK, N.A., as administrative agent (in
such capacity and together with its successors and permitted assigns, the “Administrative Agent”)
ABL Credit Agreement: Revolving Credit and Guaranty Agreement, dated as of December 29,
2022 (as it may be amended, restated, amended and restated, supple- mented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among the Borrowers, the Lenders party thereto from time to time, the Ad-
ministrative Agent, the Collateral Agent and the European Collateral Agent
, ]8
Effective Date: , (the “Effective Date”)
8 Insert for informational purposes only if needed to determine other arrangements between the Assignor and the Assignee.
| | | | | | | | | | | | | | | | | |
Assignor (collectively, the “Assignors”)9 |
Assignee (collectively, the “Assignees”)10 11 |
Type of Loan or Commitment Assigned12 | Aggregate amount of Commitments or principal amount of Loans for all Lenders13 | Aggregate amount of Commitments or principal amount of Loans Assigned14 |
Percentage Assigned |
[Name of Assignor] | [Name of Assignee] [Agent] [Lender] [Affiliate of any Agent] [Affiliate of any Lender] [Related Fund] | | $ | $ | %15 |
[Name of Assignor] | [Name of Assignee] [Agent] [Lender] [Affiliate of any Agent] [Affiliate of any Lender] [Related Fund] | | $ | $ | % |
[Name of Assignor] | [Name of Assignor] [Name of Assignee] | | $ | $ | % |
9 List each Assignor, as appropriate.
10 List each Assignee, as appropriate.
11 Assignee of Tranche B Loans must qualify as French Qualifying Lender and an Italian Tax Quali- fying Lender.
12 Fill in the appropriate defined term for the type of loan or commitment under the ABL Credit Agreement that is being assigned under this Assignment Agreement (i.e. Tranche A Revolving Commitment, Tranche B Revolving Commitment or Tranche C Revolving Commitment)
13 In the case of Revolving Loans and Revolving Commitments, includes Revolving Loans and in- terests, participations and obligations to participate in Letter of Credit Obligations and Swing Line Loans.
14 Amount to be adjusted by the counterparties to take into account any payments or prepayments ready between the Trade Date and the Effective Date. The aggregate amounts are inserted for in- ternational purposes only to help in calculating the percentages assigned which, themselves, are for informational purposes only.
15 Set forth, to at least 9 decimals, the Assigned Interest (as defined below) as a percentage of the aggregate Revolving Commitment or Loans in the relevant type of loan. This percentage is set forth for informational purposes only and is not intended to be binding. The assignments are based on the amounts assigned not on the percentages listed in this column.
| | | | | | | | | | | | | | | | | |
| [Agent] [Lender] [Affiliate of any Agent] [Affiliate of any Lender] [Related Fund] | | | | |
[THE REMAINDER OF THIS PAGE WAS INTENTIONALLY LEFT BLANK]
1.Assignment. Each Assignor hereby sells and assigns to the Assignee set forth above opposite such Assignor, and such Assignee hereby purchases and assumes from such Assignor, such Assignor’s rights and obligations in its capacity as Lender under the ABL Credit Agreement (includ- ing liabilities owing to or by such Assignor thereunder) and the other Credit Documents, in each case to the extent related to the amounts identified above opposite such Assignor (such Assignor’s “Assigned Interest”).
2.Representations, Warranties and Covenants of Assignors. Each Assignor sever- ally but not jointly (a) represents and warrants to its corresponding Assignee and the Administrative Agent that (i) it has full power and authority, and has taken all actions necessary for it, to execute and de- liver this Assignment Agreement and to consummate the transactions contemplated hereby and (ii) it is the legal and beneficial owner of its Assigned Interest and that such Assigned Interest is free and clear of any Lien and other adverse claims, (b) makes no other representation or warranty and assumes no respon- sibility, including with respect to the aggregate amount of the Loans and the Revolving Commitments, the percentage of the Loans and the Revolving Commitments represented by the amounts assigned, any statements, representations and warranties made in or in connection with any Credit Document or any other document or information furnished pursuant thereto, the execution, legality, validity, enforceability or genuineness of any Credit Document or any document or information provided in connection therewith and the existence, nature or value of any Collateral, (c) assumes no responsibility (and makes no represen- tation or warranty) with respect to the financial condition of any Credit Party or the performance or non- performance by any Credit Party of any obligation under any Credit Document or any document provided in connection therewith and (d) attaches any Notes held by it evidencing at least in part the Assigned In- terest of such Assignor (or, if applicable, an affidavit of loss or similar affidavit therefor) and requests that the Administrative Agent exchange such Notes for new Notes in accordance with terms of the ABL Cred- it Agreement.
3.Representations, Warranties and Covenants of Assignees. Each Assignee severally but not jointly
(a) represents and warrants to its corresponding Assignor and the Administrative Agent that (i) it has full power and authority, and has taken all actions necessary for such Assignee, to execute and deliver this Assignment Agreement and to consummate the transactions contemplated hereby, (ii) to the extent indi- cated above, is an Affiliate of the Assignor set forth above or is otherwise an Eligible Assignee, [(iii) [it is a French Tax Qualifying Lender and an Italian Tax Qualifying Lender]16[[(iii)][(iv)] it is [a Swiss Quali- fying Bank][a Swiss Non-Qualifying Bank and accounts as one single creditor for the purposes of the Swiss Non-Bank Rules][, [(iv)(v)] it is a Swedish Tax Qualifying Lender and [[a Spanish Tax Qualifying Lender] [a Spanish Tax Qualifying Lender solely by virtue of clauses (b) or (c) of the definition of Span- ish Tax Qualifying Lender] [and] [a UK Tax Qualifying Lender][a UK Tax Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Tax Qualifying Lender]17,]18, [[(v)/(vi)] confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is tax resident in [●] (and requests that the Parent Borrower notifies each UKCredit Party that it wishes that scheme to
16 To be included for Tranche B Lenders.
17 Tranche C Lenders should elect whichever of the UK Tax Qualifying Lender Statements which applies to them. A UK Tax Confirmation may be required.
18 To be included for Tranche C Lenders.
apply to the ABL Credit Agreement)19 and [(v)/(vi)/(vii)][and (iii)] it is sophisticated with respect to deci- sions to acquire assets of the type represented by the Assigned Interest assigned to it hereunder and either such Assignee or the Person exercising discretion in making the decision for such assignment is experi- enced in acquiring assets of such type, (b) appoints and authorizes the Administrative Agent to take such action as administrative agent and collateral agent on its behalf and to exercise such powers under the Credit Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto, (c) shall perform in accordance with their terms all obliga- tions that, by the terms of the Credit Documents, are required to be performed by it as a Lender, (d) con- firms it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment Agreement and shall continue to make its own credit decisions in taking or not taking any action under any Credit Document independently and without reli- ance upon the Administrative Agent or any other Secured Party and based on such documents and infor- mation as it shall deem appropriate at the time, (e) acknowledges and agrees that, as a Lender, it may re- ceive material non-public information and confidential information concerning the Credit Parties and their Affiliates and Securities and agrees to use such information in accordance with Section 10.17 of the ABL Credit Agreement, (f) specifies as its applicable lending offices (and addresses for notices) the offices at the addresses set forth beneath its name on the signature pages hereof, (g) shall pay to the Administrative Agent an assignment fee in the amount of $3,500 to the extent such fee is required to be paid under Sec- tion 10.6(f) of the ABL Credit Agreement and (h) to the extent required pursuant to Section 2.19(k) of the ABL Credit Agreement, attaches two completed originals of Forms W-8ECI or W-8BEN (or any succes- sor forms).
4.Determination of Effective Date; Register. Following the due execution and de- livery of this Assignment Agreement by each Assignor, each Assignee and, to the extent required by Sec- tion 10.6 of the ABL Credit Agreement, the Borrowers, this Assignment Agreement (including its at- tachments) will be delivered to the Administrative Agent for its acceptance and recording in the Register. This Assignment Agreement shall become effective only after the recording of this Assignment in the Register, and the Effective Date of this Assignment Agreement shall be the date specified in the space provided therefor at the beginning of this Assignment Agreement.
5.Effect. As of the Effective Date, (a) each Assignee shall be a party to the ABL Credit Agreement and, to the extent provided in this Assignment Agreement, have the rights and obliga- tions of a Lender under the ABL Credit Agreement and (b) each Assignor shall, to the extent provided in this Assignment Agreement, relinquish its rights (except those surviving the termination of the Revolving Commitments and payment in full of the Obligations) and be released from its obligations under the Credit Documents other than those obligations relating to events and circumstances occurring prior to the Effective Date.
6.Distribution of Payments. On and after the Effective Date, the Administrative Agent shall make all payments under the Credit Documents in respect of each Assigned Interest of any Assignor (a) in the case of amounts accrued to but excluding the Effective Date, to such Assignor and (b) otherwise, to the corresponding Assignee.
7.Miscellaneous. This Assignment Agreement is subject to certain provisions of the ABL Credit Agreement, including Sections 1.3 (Interpretation, etc.), 10.15 (Consent to Jurisdiction; Service of Process) and 10.16 (Waiver of Jury Trial) thereof. On and after the Effective Date, this As- signment shall be binding upon, and inure to the benefit of, the Assignors, Assignees, the Administrative
19 To be included for Tranche C Lenders if they wish the DTTP scheme to apply.
Agent and their Related Persons and their successors and assigns. For purposes of this paragraph “Relat- ed Person” means, with respect to any Person, each permitted Affiliate of such Person and each director, officer, partner, employee, agent, sub-agent and trustee of such Person or any of its Affiliates, together with, if such Person is the Administrative Agent, each other Person or individual designated, nominated or otherwise mandated by or helping the Administrative Agent pursuant to any Credit Document.
8.Governing Law. This Assignment Agreement shall be governed by, and be con- strued and interpreted in accordance with, the law of the State of New York.
9.Counterparts. This Assignment Agreement may be executed in any number of counterparts and by different parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Assignment Agreement by facsimile transmission or Ap- proved Electronic Communication shall be as effective as delivery of a manually executed counterpart of this Assignment Agreement.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment Agreement to be exe- cuted by their respective duly Authorized Officers, as of the date first above written.
[NAME OF ASSIGNOR]
as Assignor
By: Name:
Title:
[NAME OF ASSIGNEE]
as Assignee
By: Name:
Title:
Lending Office for [ABR][Canadian Prime Rate][RFR][Term Benchmark][Tranche A Loans][Tranche B Loans][Tranche C Loans]:20
[Insert Address (including contact name, fax number and e-mail address)]
Lending Office (and address for notices) for any other purpose:
[Insert Address (including contact name, fax number and e-mail address)]
20 Insert for each Assignee, as applicable.
ACCEPTED and AGREED
this day of :
JPMORGAN CHASE BANK, N.A., as Administrative Agent, Collateral Agent, an Issuing Bank, a Tranche A Swing Line Lender and a Lender
By: Name:
Title:
DIEBOLD NIXDORF, INCORPORATED21
By: Name:
Title:
[ADDITIONAL TRANCHE A ISSUING BANK(S)]22
By: Name:
Title:
[SWISS BORROWER]23
By: Name:
Title:
21 Include only if required pursuant to Section 10.6 of the Credit Agreement.
22 Include if JPMorgan Chase Bank, N.A. is not the sole Issuing Bank.
23 Include only for assignments for which the Assignee is not a Swiss Qualifying Bank.
EXHIBIT F
SUBORDINATION AGREEMENT
[Separately Attached]
INTERCOMPANY SUBORDINATION AGREEMENT
This INTERCOMPANY SUBORDINATION AGREEMENT, dated as of De-
cember 29, 2022 (as amended, restated, supplemented or otherwise modified from time to time, this “Intercompany Subordination Agreement”), is made and entered into by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), each of the other under- signed Loan Parties (as defined in the Term Loan Credit Agreements), Credit Parties (as defined in the ABL Credit Agreement) and Guarantors (as defined in the Indentures) (collectively, to- gether with the Company, the “Obligors” and each an “Obligor”) and any other entity listed on the signature pages hereto which is not a Loan Party (as defined in the Term Loan Credit Agreements), Credit Party (as defined in the ABL Credit Agreement) or Guarantor (as defined in the Indentures) (in such capacity for the purposes of this Intercompany Subordination Agree- ment, a “Subordinated Creditor”) in favor of the (i) Term Loan Senior Creditors (as defined below), (ii) the ABL Senior Creditors (as defined below) and (iii) the Holders (as defined in the Indentures (as defined below)) (the “Notes Senior Creditors” and, together with the Term Loan Senior Creditors and the ABL Senior Creditors, the “Senior Creditors”).
RECITALS
A.Reference is made to (i) the Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Superpriority Credit Agreement”; the Superpriority Credit Agreement together with the other Loan Documents (as defined therein), the “Superpriority Loan Documents”), by and among the Company, Diebold Nixdorf Holding Germany GmbH, as the borrower, the Lenders (as defined in the Superpriority Credit Agreement) from time to time party thereto, GLAS USA LLC, as administrative agent (in such capacity and together with its successors and assigns in such capacity, the “Superpriority Administrative Agent”) for the Lenders party thereto (the “Superpriority Senior Creditors”), GLAS Americas LLC as collateral agent (in such capacity and together with its successors and assigns in such capacity, the “Superpriority Collateral Agent” and together with the Superpriority Administrative Agent, the “Superpriority Agents”) for the Superpriority Senior Creditors, and other parties from time to time party thereto, (ii) the Credit Agreement, dated as of the date hereof (as amended, restated, amended and restated, sup- plemented or otherwise modified from time to time, the “New Term Loan Credit Agreement” and together with the Superpriority Credit Agreement, the “Term Loan Credit Agreements”; the New Term Loan Credit Agreement together with the other Loan Documents (as defined therein), the “New Term Loan Documents”; the New Term Loan Documents together with the Superpriority Loan Documents, the “Term Loan Documents”), by and among the Company, the Lenders (as defined in the New Term Loan Credit Agreement) from time to time party there- to, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity and together with its successors and assigns in such capacity, the “New Term Loan Administrative Agent”) for the Lenders party thereto (the “New Term Loan Senior Creditors”; the New Term Loan Senior Creditors together with the Superpriority Senior Creditors, the “Term Loan Senior Creditors”), GLAS Americas LLC as collateral agent (in such capacity and together with its successors and assigns in such capacity, the “New Term Loan Collateral Agent” and together with the New Term Loan Administrative Agent, the “New Term Loan Agents”; the New Term Loan Agents together with the Superpriority Agents, the “Term Loan Agents”) for the New Term Loan Sen- ior Creditors, and other parties from time to time party thereto, (iii) the Revolving Credit and
Guaranty Agreement, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement” and to- gether with the Term Loan Credit Agreements, the “Credit Agreements”; the ABL Credit Agreement together with the other Credit Documents (as defined therein), the “ABL Docu- ments”), by and among the Company, as Parent Borrower, the US Subsidiary Guarantors, the European Guarantors, the European Borrowers, the Canadian Borrower, the Lenders (each as defined in the ABL Credit Agreement) from time to time party thereto, JPMorgan Chase Bank, N.A., as administrative agent (in such capacity and together with its successors and assigns in such capacity, the “ABL Administrative Agent”) for the Lenders party thereto (the “ABL Sen- ior Creditors”), JPMorgan Chase Bank, N.A., as collateral agent (in such capacity and together with its successors and assigns in such capacity, the “ABL Collateral Agent”) for the Lenders party thereto and GLAS Americas LLC, as European collateral agent (in such capacity and to- gether with its successors and assigns in such capacity, the “ABL European Collateral Agent” and together with the ABL Administrative Agent and the ABL Collateral Agent, the “ABL Agents”) for the Lenders party thereto, (iv) that certain Indenture, dated as of July 20, 2020 (the “2025 U.S. Notes Indenture”; the 2025 U.S. Notes Indenture together with the Collateral Doc- uments, the Notes and the Intercreditor Agreements (each as defined therein), the “2025 U.S. Notes Documents”), by and among the Company, the subsidiary guarantors party thereto, U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), and GLAS Americas LLC, as notes collateral agent (the “Notes Collateral Agent” and, together with the Superpriori- ty Collateral Agent, the New Term Loan Collateral Agent, the ABL Collateral Agent and the ABL European Collateral Agent, the “Collateral Agents” and, together with the Trustee, the Term Loan Agents and the ABL Administrative Agent, the “Agents” and each an “Agent”), as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Company’s 9.375% Notes due 2025 (the “2025 U.S. Notes”), (v) that certain Indenture, dated as of July 20, 2020 (the “2025 Euro Notes Indenture”; the 2025 Euro Notes Indenture together with the Collateral Documents, the Notes and the Intercreditor Agreements (each as defined therein), the “2025 Euro Notes Documents”), by and among Diebold Nixdorf Dutch Holding B.V., as issuer, the Company, as guarantor, the subsidiary guarantors party there- to, Elavon Financial Services DAC, as paying agent, transfer agent and registrar, the Trustee, and the Notes Collateral Agent, as amended on or about the Closing Date and as further amended or supplemented from time to time, relating to the Diebold Nixdorf Dutch Holding B.V.’s 9.000% Notes due 2025 (the “2025 Euro Notes”) and (vi) that certain Indenture, dated as of December 29, 2022 (the “New 2L Notes Indenture” and, together with the 2025 U.S. Notes Indenture and the 2025 Euro Notes Indenture, the “Indentures”; the New 2L Notes Indenture together with the Collateral Documents, the Notes and the Intercreditor Agreements (each as defined therein), the “New 2L Notes Documents”; the New 2L Notes Documents together with the 2025 U.S. Notes Documents and the 2025 Euro Notes Documents, the “Notes Documents”; the Notes Documents together with the Term Loan Documents and the ABL Documents, collectively the “Credit Documents” and each a “Credit Document”), by and among the Company, the guarantors party thereto, the Trustee, and the Notes Collateral Agent, as amended or supplemented from time to time, relating to the Company’s 8.50%/12.50% Senior Secured PIK Toggle Notes due 2026 (the “New 2L Notes” and, together with the 2025 U.S. Notes and the 2025 Euro Notes, the “Notes”). Capitalized terms used but not otherwise defined herein shall have the respective meanings as- signed to them in the Credit Agreements or the Indentures, as applicable.
B.All Indebtedness of (i) each Obligor to each Subordinated Creditor and (ii) each Obligor not organized under the laws of the United States or any state thereof or the District of Columbia to each Obligor organized under the laws of the United States or any state thereof or the District of Columbia now or hereafter existing (whether created directly or acquired by as- signment or otherwise), and all interest, premiums, costs, expenses or indemnification amounts thereon or payable in respect thereof or in connection therewith, are hereinafter referred to as the “Subordinated Debt”.
C.This Intercompany Subordination Agreement is entered into in accordance with (i) Section 4.1(p) and 6.18 of the Term Loan Credit Agreements and Section 3.1(h) and 6.7 of the ABL Credit Agreement and delivered in connection therewith and (ii) Section 4.09(b)(5) of the Indentures and delivered in connection therewith.
Section 1. Subordination. Each Subordinated Creditor and each Obligor agrees that the Subordinated Debt is and shall be subordinate, to the extent and in the manner hereinafter set forth, to the prior payment in full in cash of all Obligations (as defined in the Credit Agreements) of any such Obligor now or hereafter existing under the Credit Agreements and the other “Loan Documents” (as defined in the Term Loan Credit Agreements) and the other “Credit Documents” (as defined in the ABL Credit Agreement) and all Guaranteed Obligations (as defined in the In- dentures) of any such Obligor now or hereafter existing under the Indentures and the other “Notes Documents”, in each case including, without limitation, where applicable, such Obligor’s guarantee thereof (the “Senior Obligations” and such payment in full in cash of the Senior Ob- ligations (other than contingent indemnity or reimbursement obligations for which not claim has been asserted), the “Termination Conditions”).
Section 2. Events of Subordination.
(a)In the event of any dissolution, winding up, liquidation, administration, arrange- ment, moratorium, reorganization, adjustment, protection, relief or composition of any Obligor or its debts, whether voluntary or involuntary, in any bankruptcy, insolvency, administration, ar- rangement, reorganization, moratorium, receivership, relief or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities of any Obligor or otherwise, the Senior Creditors shall be entitled to receive payment in full of the Senior Obligations before any Subordinated Creditor is entitled to receive any payment of all or any of the Subordinated Debt, and any payment or distribution of any kind (whether in cash, property or securities, but other than (i) equity securities or (ii) debt securities of such Obligor that are subordinated, to at least the same extent as the Subordinated Debt hereunder, to the payment of all Senior Obligations then outstanding) that otherwise would be payable or deliverable upon or with respect to the Subordinated Debt in any such case, proceeding, assignment, marshalling or otherwise (includ- ing any payment that may be payable by reason of any other indebtedness of such Obligor being subordinated to payment of the Subordinated Debt) shall be paid or delivered in accordance with each Credit Document for the account of the applicable Senior Creditors for application (in the case of cash) to, or as collateral (in the case of non-cash property or securities) for, the payment or prepayment of the Senior Obligations until the Senior Obligations shall have been paid in full in cash.
(b)If any Default (as defined in the Term Loan Credit Agreements), Event of Default (as defined in the ABL Credit Agreement) or Event of Default (as defined in the Indentures) has occurred and is continuing under any of the Credit Documents and after notice from the applica- ble Agent or the Required Lenders or Holders of a majority in principal amount of the Notes then outstanding (the “Required Holders”), as applicable, to each Subordinated Creditor (provided that no such notice shall be required to be given in the case of any (a) Default arising under Sec- tion 7.6 or 7.7 of each Term Loan Credit Agreement, (b) Default arising under Section 8.1(f) or 8.1(g) of the ABL Credit Agreement and (c) Event of Default arising under Section 6.01(a)(8) of each Indenture, as applicable), then no payment (including any payment that may be payable by reason of any other Indebtedness of any Obligor being subordinated to payment of the Subordi- nated Debt) or distribution of any kind or character shall be made by or on behalf of any Obligor for or on account of any Subordinated Debt, and no Subordinated Creditor shall take or receive from any Obligor, directly or indirectly, in cash or other property or by set-off or in any other manner, including, without limitation, from or by way of collateral, payment of all or any of the Subordinated Debt, until (x) the satisfaction of the Termination Conditions or (y) such Default or Event of Default shall have been cured or waived, unless otherwise agreed, in each affected Col- lateral Agent’s reasonable discretion (acting at the direction of the Required Lenders or the Re- quired Holders, as applicable), in writing by such Collateral Agent.
(c)Except as otherwise set forth in Sections 2(a) through (b) above, any Obligor is permitted to pay, and any Subordinated Creditor is entitled to receive, any payment or prepay- ment of principal and interest on the Subordinated Debt.
Section 3. In Furtherance of Subordination. Each Subordinated Creditor agrees as fol- lows:
(a)If any proceeding referred to in Section 2(a) above is commenced by or against any Obligor,
(xxxiii)each Collateral Agent is hereby irrevocably authorized and empowered (in its own name or in the name of each Subordinated Creditor or otherwise), but shall have no obli- gation, to demand, sue for, collect and receive every payment or distribution referred to in Sec- tion 2(a) and give acquittance therefor and to file claims and proofs of claim and take such other action (including, without limitation, voting the Subordinated Debt or enforcing any security in- terest or other lien securing payment of the Subordinated Debt) as it may deem necessary or ad- visable for the exercise or enforcement of any of the rights or interests of the Senior Creditors hereunder to the extent permissible under relevant local law; and
(xxxiv)each Subordinated Creditor shall duly and promptly (x) take such action as any Collateral Agent (at the direction of the Required Lenders or Required Holders, as applica- ble) may reasonably request to collect the Subordinated Debt for the account of the Senior Credi- tors and to file appropriate claims or proofs or claim in respect of the Subordinated Debt, (y) ex- ecute and deliver to such Collateral Agent such powers of attorney, forms of proxy, assignments, or other instruments as any Collateral Agent (at the direction of the Required Lenders or Re- quired Holders, as applicable) may reasonably request in order to enable such Collateral Agent to enforce or exercise any voting rights in respect of any and all claims with respect to, and any se- curity interests and other liens securing payment of, the Subordinated Debt, and (z) take such
action as any Collateral Agent (at the direction of the Required Lenders or Required Holders, as applicable) may reasonably request to collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Debt.
(b)All payments or distributions upon or with respect to the Subordinated Debt which are received by each Subordinated Creditor contrary to the provisions of this Intercompany Sub- ordination Agreement shall be received and held in trust for the benefit of (or, in respect of any Subordinated Creditor incorporated in Italy, in the name and on behalf (in nome e per conto) of) the Senior Creditors or as agent on behalf of the Senior Creditors (as applicable), shall be segre- gated (to the extent allowed under applicable law) from other funds and property held by such Subordinated Creditor, or in the case of a Subordinated Creditor incorporated in Sweden, sepa- rated as “escrow funds” (Sw. redovisningsmedel), and shall be forthwith paid over to the appli- cable Collateral Agent for the account of the Senior Creditors in the same form as so received (with any necessary indorsement) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the payment or prepayment of the Senior Obliga- tions, as applicable in accordance with the terms of the Credit Agreements and the Indentures, as applicable.
(c)Each Collateral Agent is hereby authorized to (at the direction of the Required Lenders or Required Holders, as applicable) demand specific performance of this Intercompany Subordination Agreement, whether or not such Obligor shall have complied with any of the pro- visions hereof applicable to it (or any other provision of any Credit Documents applicable to it), at any time when such Subordinated Creditor shall have failed to comply with any of the provi- sions of this Intercompany Subordination Agreement applicable to it. Each Subordinated Credi- tor hereby irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance.
Section 4. Rights of Subrogation. Each Subordinated Creditor agrees that no payment or distribution to any Agent or the other Senior Creditors pursuant to the provisions of this Inter- company Subordination Agreement shall entitle such Subordinated Creditor to exercise any right of subrogation in respect thereof until the satisfaction of the Termination Conditions.
Section 5. Further Assurances. Each Subordinated Creditor and each Obligor will, at its expense and at any time and from time to time, promptly execute and deliver all further in- struments and documents, and take all further action, that may be necessary, or that any Agent or the Required Lenders or Required Holders, as applicable, may reasonably request in writing, in order to protect any right or interest granted or purported to be granted hereby or to enable any Agent or any other Senior Creditors to exercise and enforce their respective rights and remedies hereunder.
Section 6. Agreements in Respect of Subordinated Debt. No Subordinated Creditor will, except as permitted under each of the Credit Agreements and the Indentures:
(a)sell, assign, pledge, encumber or otherwise dispose of any of the Subordinated Debt unless such sale, assignment, pledge, encumbrance or disposition is made expressly subject to this Intercompany Subordination Agreement; or
(b)permit the terms of any of the Subordinated Debt to be changed in such a manner as to have a material adverse effect upon the rights or interests of the Agents or any of the Senior Creditors hereunder.
Section 7. Agreement by the Obligors. Each Obligor agrees that it will not make any payment of any of the Subordinated Debt, or take any other action, in each case if such payment or other action would be in contravention of the provisions of this Intercompany Subordination Agreement.
Section 8. Notification of pledge under Dutch security agreement. Each Obligor and each Subordinated Creditor hereto is hereby notified that each of Diebold Nixdorf Global Hold- ing B.V., Diebold Nixdorf Dutch Holding B.V., Diebold Nixdorf B.V., Diebold Nixdorf Soft- ware Partner B.V., Diebold Nixdorf Global Solutions B.V., and Diebold Nixdorf Software CV (the "Dutch Obligors") created or will create a pledge in favor of GLAS Americas LLC in its capacity as “Collateral Agent” under the Term Loan Credit Agreements, “European Collateral Agent” under the ABL Credit Agreement and “Notes Collateral Agent” under the Indentures over all present and future rights of that Dutch Obligor against each Obligor and each Subordi- nated Creditor (the “Intercompany Receivables Pledges”) pursuant to a Dutch law governed security agreement, dated on or about the date hereof, entered into in connection with the Credit Agreements and the Indentures. Each Obligor and each Subordinated Creditor hereby acknowl- edges and confirms that (i) it has received notification of the Intercompany Receivables Pledges, and, (ii) to the extent required, consents to the creation of the Intercompany Receivables Pledges. Each Obligor and each Subordinated Creditor can continue to pay the relevant Dutch Obligor until the relevant Dutch Obligor or GLAS Americas LLC (or is successor agent under the Credit Agreements and the Indentures) instructs the relevant Obligor or Subordinated Creditor other- wise.
Section 9. Obligations Hereunder Not Affected. All rights and interests of the Agents and the other Senior Creditors hereunder, and all agreements and obligations of each Subordinat- ed Creditor and each Obligor under this Intercompany Subordination Agreement, shall remain in full force and effect irrespective of:
(a)any amendment, waiver, extension, renewal, compromise, discharge, acceleration or other change in the time for payment or the terms of the Senior Obligations or any part thereof (other than, in each case, satisfaction of the Termination Conditions);
(b)any taking, holding, exchange, enforcement, waiver, release, failure to perfect, sell or otherwise dispose of any security for payment of any guarantee or any Senior Obligations;
(c)the application of security and directing the order or manner of sale thereof as any Collateral Agent (acting at the direction of the Required Lenders or Required Holders, as appli- cable) and the Senior Creditors in their sole discretion may determine;
(d)the release or substitution of one or more of any endorsers or other guarantors of any of the Senior Obligations;
(e)the taking of, or failure to take any action which might in any manner or to any ex- tent vary the risks of any Obligor or which, but for this Section 9, might operate as a discharge of such Obligor;
(f)any defense arising by reason of any disability, change in corporate existence or structure or other defense of any Obligor or a Subordinated Creditor, the cessation from any cause whatsoever (including any act or omission of any Senior Creditor) of the liability of such Obligor or a Subordinated Creditor;
(g)any defense based on any claim that such Obligor’s or Subordinated Creditor’s ob- ligations exceed or are more burdensome than those of any other Obligor or any other Subordi- nated Creditor, as applicable;
(h)the benefit of any statute of limitations affecting such Obligor’s or Subordinated Creditor’s liability hereunder;
(i)any right to proceed against any Obligor, proceed against or exhaust any security for the Obligations, or pursue any other remedy in the power of any Senior Creditor, whatsoever;
(j)any benefit of and any right to participate in any security now or hereafter held by any Senior Creditor, and
(k)to the fullest extent permitted by law, any and all other defenses or benefits that may be derived from or afforded by applicable law limiting the liability of or exonerating guar- antors or sureties.
This Intercompany Subordination Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Senior Obligations is re- scinded or must otherwise be returned by any Collateral Agent or any other Senior Creditor upon the insolvency, bankruptcy or reorganization of any Obligor or otherwise, all as though such payment had not been made. This Intercompany Subordination Agreement shall remain in full force and effect following the commencement of any insolvency, bankruptcy or reorganization proceeding of any Obligor.
Section 10. Waiver. Each Subordinated Creditor and each Obligor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Sen- ior Obligations and this Intercompany Subordination Agreement and any requirement that the Agents or any other Senior Creditor protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against any Obligor or any other person or entity or any collateral.
Section 11. Amendments, Etc. Other than as permitted pursuant to Section 19 below, no amendment or waiver of any provision of this Intercompany Subordination Agreement, and no consent to any departure by any Subordinated Creditor or any Obligor herefrom, shall in any event be effective unless the same shall be in writing and signed by each Agent, such Obligor and each Subordinated Creditor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.
Section 12. Expenses and Indemnification. (a) The Term Loan Agents are entitled to the benefits of Section 10.6 of the Term Loan Credit Agreements and the ABL Agents are entitled to the benefits of Sections 10.2 and 10.3 of the ABL Credit Agreement, in each case, with respect to reasonable and documented fees out-of-pocket costs and expenses incurred in connection with the preparation, negotiation and execution of this Intercompany Subordination Agreement and with respect to such rights, protections, indemnities and immunities granted under the Credit Agreements and any liabilities incurred in connection with this Intercompany Subordination Agreement and such provisions are incorporated herein by reference and (b) the Trustee and the Notes Collateral Agent are entitled to the benefits of Section 7.07 of the Indentures with respect to reasonable and documented out-of-pocket cost and expenses incurred in connection with the preparation, negotiation and execution of this Intercompany Subordination Agreement and with respect to such rights, protections, indemnities and immunities granted under each Indenture and any liabilities incurred in connection with this Intercompany Subordination Agreement and such provisions are incorporated herein by reference.
Section 13. Addresses for Notices. All communications and notices hereunder shall (ex- cept as otherwise expressly permitted herein) be in writing and given as provided in (a) Section
14.1 of each Term Loan Credit Agreement, (b) Section 10.1 of the ABL Credit Agreement and
(c)Section 13.02 of each Indenture, as applicable. All communications and notice hereunder to an Obligor other than the Company shall be given in care of the Company.
Section 14. No Waiver; Remedies. No failure on the part of any Agent or any other Sen- ior Creditor to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or fur- ther exercise thereof or the exercise of any other right. The remedies herein provided are cumula- tive and not exclusive of any remedies provided by law. In the event of any conflict between the terms of this Intercompany Subordination Agreement and the terms of any Credit Document, the terms of the Credit Document shall govern.
Section 15. Joinder. Upon execution and delivery after the date hereof by any Subsidi- ary of a joinder agreement in substantially the form of Exhibit A hereto, each such party shall become an Obligor and/or a Subordinated Creditor, as applicable, hereunder with the same force and effect as if originally named as an Obligor or a Subordinated Creditor, as applicable, hereun- der. The rights and obligations of each Obligor and each Subordinated Creditor hereunder shall remain in full force and effect notwithstanding the addition of any new Obligor or Subordinated Creditor as a party to this Intercompany Subordination Agreement.
Section 16. Governing Law; Jurisdiction; Etc.
(a)THIS INTERCOMPANY SUBORDINATION AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER (INCLUDING ANY CLAIMS SOUNDING IN CONTRACT LAW OR TORT LAW ARISING OUT OF THE SUBJECT MATTER HEREOF AND ANY DETERMINATIONS WITH RESPECT TO POST- JUDGMENT INTEREST) SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b)BY EXECUTING AND DELIVERING THIS INTERCOMPANY SUBORDINATION AGREEMENT, EACH OBLIGOR HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK CITY IN THE BOROUGH OF MANHATTAN AND OF ANY UNITED STATES FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INTERCOMPANY SUBORDINATION AGREEMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. EACH PARTY HERETO AGREES THAT THE AGENTS AND THE OTHER SENIOR CREDITORS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY OBLIGOR OR SUBORDINATED CREDITOR IN THE COURTS OF ANY OTHER JURISDICTION IN CONNECTION WITH THE EXERCISE OF ANY RIGHTS UNDER THIS INTERCOMPANY SUBORDINATION AGREEMENT OR THE ENFORCEMENT OF ANY JUDGMENT.
(c)EACH OBLIGOR HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INTERCOMPANY SUBORDINATION AGREEMENT IN ANY COURT REFERRED TO IN PARAGRAPH (b) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.
(d)EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 13 OF THIS INTERCOMPANY SUBORDINATION AGREEMENT. NOTHING IN THIS INTERCOMPANY SUBORDINATION AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.
(e)EACH PARTY TO THIS INTERCOMPANY SUBORDINATION AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS INTERCOMPANY SUBORDINATION AGREEMENT OR THE TRANSACTIONS RELATED HERETO (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY). THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL- ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS INTERCOMPANY SUBORDINATION AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS INTERCOMPANY SUBORDINATION AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 16(E) AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE MATTERS HEREUNDER. IN THE EVENT OF LITIGATION, ANY PARTY TO THIS INTERCOMPANY SUBORDINATION AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION 16(E) WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Section 17. Counterparts; Effectiveness. This Intercompany Subordination Agreement may be executed in one or more counterparts (and by different parties hereto in different coun- terparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Intercompany Subordination Agreement shall become effective when it shall have been executed by the Company, the other Obligors party hereto and the Sub- ordinated Creditors party hereto and thereafter shall be binding upon and inure to the benefit of each Obligor, each Subordinated Creditor, each Agent, the other Senior Creditors and their re- spective permitted successors and assigns, subject to Section 6 hereof. Delivery of an executed counterpart of a signature page of this Intercompany Subordination Agreement by telecopy or other electronic imaging means (including in .pdf or .tif format) shall be effective as delivery of a manually executed counterpart of this Intercompany Subordination Agreement. This Intercom- pany Subordination Agreement shall be construed as a separate agreement with respect to each Obligor and each Subordinated Creditor and may be amended, restated, modified, supplemented, waived or released with respect to any Obligor or any Subordinated Creditor without the approv- al of any other Obligor or Subordinated Creditor and without affecting the obligations of any other Obligor or Subordinated Creditor hereunder.
Section 18. Termination or Release.
(a)This Intercompany Subordination Agreement shall terminate upon the satisfaction of the Termination Conditions.
(b)An Obligor shall automatically be released in the circumstances set forth in (i) Sec- tion 11.9 of the Term Loan Credit Agreements, (ii) Section 10.5(c) of the ABL Credit Agreement and (iii) Section 10.06 of the Indentures.
(c)In connection with any termination or release pursuant to paragraph (a) or (b) above, the Required Lenders or Required Holders, as applicable, authorize each applicable Agent to promptly execute and deliver to any Obligor, at such Obligor’s expense, all documents that such Obligor shall reasonably request to evidence such termination or release and take all other actions reasonably requested by any Obligor, at such Obligor’s expense, in connection with such release. Any execution and delivery of documents pursuant to this Section 18 shall be without recourse to or warranty by any Agent.
(d)At any time that the respective Obligor desires that the Agents take any of the ac- tions described in immediately preceding clause (c), it shall, upon request of each Agent deliver an officer’s certificate to such Agent, certifying that the release of the respective Obligor is per- mitted pursuant to paragraph (a) or (b) above. No Agent shall have any liability whatsoever to any other Senior Creditor as a result of any release of any Obligor by it as permitted (or which such Person(s) in good faith believes to be permitted) by this Section 18.
Section 19. Third Party Benefit; Actions by the Holders.
(a)Notwithstanding any other provision of this Intercompany Subordination Agree- ment, the Senior Creditors that are not a party hereto shall have the benefit of, and shall enjoy the rights granted to them under, this Intercompany Subordination Agreement, notwithstanding the fact that they are not a party to this Intercompany Subordination Agreement.
(b)Senior Creditors acting in their capacity as Agent or otherwise under this Intercom- pany Subordination Agreement shall be entitled to exercise or enforce their rights, or take any other action under this Intercompany Subordination Agreement, provided such action is taken, directed or consented to by the Required Lenders or the Required Holders, as applicable, or oth- erwise authorized under the applicable Credit Document.
Section 20. Intercreditor Agreement. Solely as between the Agents, in the event of any conflict between this Intercompany Subordination Agreement and any applicable Intercreditor Agreement, such applicable Intercreditor Agreement shall govern.
Section 21. Concerning the Agents. GLAS USA LLC is entering into this Intercompany Subordination Agreement not in its individual capacity but solely in its capacity as “Administra- tive Agent” under the Superpriority Credit Agreement and shall be entitled to all of the rights, privileges, immunities and indemnities set forth in the Superpriority Credit Agreement in acting hereunder. JPMorgan Chase Bank, N.A. is entering into this Intercompany Subordination Agreement solely in its capacity as “Administrative Agent” under each of the New Term Loan Credit Agreement and the ABL Credit Agreement and as “Collateral Agent” under the ABL Credit Agreement and shall be entitled to all of the rights, privileges, immunities and indemnities set forth in the New Term Loan Credit Agreement and the ABL Credit Agreement, as applicable,
in acting hereunder. GLAS Americas LLC is entering into this Intercompany Subordination Agreement not in its individual capacity but solely in its capacity as “Collateral Agent” under the Term Loan Credit Agreements, “European Collateral Agent” under the ABL Credit Agreement and “Notes Collateral Agent” under the Indentures and shall be entitled to all of the rights, privi- leges, immunities and indemnities set forth in the Term Loan Credit Agreements, the ABL Credit Agreement and the Indentures, as applicable, in acting hereunder. U.S. Bank Trust Company, National Association is entering into this Intercompany Subordination Agreement solely in its capacity as “Trustee” under the Indentures and shall be entitled to all of the rights, privileges, immunities and indemnities set forth in the Indentures in acting hereunder.
Section 22. Spanish Law Provisions.
(a)Certain Spanish matters: Where it relates to a person incorporated in Spain, and unless the contrary intention appears, a reference to: (i) “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including a declaración de concurso con independecia de su carácter necesario o voluntario as well as any solicitud de inicio del procedimiento de concurso voluntario, the request of declaration of insolvency by a third party (solicitud de concurso por acreedores) (including without limitation, any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, petition to appoint a restructuring expert pursuant to articles 672 et seq., and its solicitud de inicio de procedimiento de concurso, auto de declaración de concurso, convenio judicial o extrajudicial con acreedores and transacción extrajudicial). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law; (ii) “financial assistance” means (a) in respect of an Obligor incoporated in Spain as a Sociedad Anónima, financial assistance under Article 150 of the Spanish Companies Law; and (b) in respect of an Obligor incoporated in Spain as a Sociedad de Responsabilidad Limitada, financial assistance under Article 143 of the Spanish Companies Law; (iii) “winding up” or “dissolution” includes, without limitation, disolución or liquidación, or any other similar proceedings and shall be used to those circumstances as regulated under Spanish law from time to time; (iv) a “composition” or similar arrangement with any creditor includes, without limitation, a convenio de acreedores or plan de reestructuración to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under Title II or Title III of the Second Book of the Spanish Insolvency Law; (v) a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem security right governed by Spanish law; and (vi) a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).
(b)Spanish Insolvency Law provisions: In the event of an Insolvency Proceeding in relation to any Obligor incorporated in Spain, the Parties agree that pursuant to article 435.3 of the Spanish Insolvency Law, the provisions contained in this Intercompany Subordination Agreement regarding the application of proceeds shall prevail over any classification of the claims carried out by the Spanish administrator (administrador concursal) of the relevant Insolvency Proceeding.
As an exception to the above, after the occurrence of an Insolvency Proceeding if an Obligor incorporated in Spain is declared insolvent and the recovering Creditor is not a specially related person (persona especialmente relacionada) to such Obligor as defined in article 282 of the Spanish Insolvency Law, the recovering Creditor will not need to pay a redistribution for those Subordinated Creditors that have been regarded as specially related persons to the relevant Obligor incorporated in Spain.
(c)Limitations Applicable to Spanish Parties. Any guarantee, security, indemnity, obligation and liability granted, incurred, undertaken, assumed or otherwise agreed by any Obligor incorporated in Spain under this Intercompany Subordination Agreement shall not extend to any liabilities to the extent that the same would cause a breach of the financial assistance prohibitions under Article 150 of the Spanish Companies Law (in respect of an Obligor incorporated in Spain as a Sociedad Anónima) and Article 143 of the Spanish Companies Law (in respect of an Obligor incorporated in Spain as a Sociedad de Responsabilidad Limitada).
Section 23. Limitations Applicable to Swedish Parties. The obligations and liabilities of any party hereto incorporated under the laws of Sweden under this Intercompany Subordination Agreement shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) in force from time to time regulating unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sec- tions 1 to 4 of the Swedish Companies Act and financial assistance and other prohibited loans, prohibited security and prohibited guarantees pursuant to Chapter 21, Sections 1 to 3 and 5, and it is understood that the obligations and liabilities of each party hereto incorporated in Sweden under this Intercompany Subordination Agreement only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.
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IN WITNESS WHEREOF, each Subordinated Creditor and each Obligor has caused this Intercompany Subordination Agreement to be duly executed and deliv- ered by its officer thereunto duly authorized as of the date first above written.
DIEBOLD NIXDORF, INCORPORATED,
as Obligor
By: Name:
Title:
[GERMAN BORROWER AND GUARANTORS],
as Obligor
By: Name: Title:
[NON-GUARANTOR CREDITORS OF OBLIGORS], each
as Subordinated Creditor
By: Name: Title:
GLAS USA LLC,
as Superpriority Administrative Agent
By: Name:
Title:
GLAS AMERICAS LLC,
as Superpriority Collateral Agent
Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as New Term Loan Administrative Agent
By: Name:
Title:
GLAS AMERICAS LLC,
as New Term Loan Collateral Agent
Name:
Title:
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
By: Name:
Title:
GLAS AMERICAS LLC,
as Notes Collateral Agent
By: Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as ABL Administrative Agent
By: Name:
Title:
JPMORGAN CHASE BANK, N.A.,
as ABL Collateral Agent
By: Name:
Title:
GLAS AMERICAS LLC,
as ABL European Collateral Agent
By: Name:
Title:
Exhibit A to the Intercompany Subordination Agreement FORM OF JOINDER AGREEMENT
This JOINDER AGREEMENT, dated as of, [ , 20 ] (this “Joinder”), is de- livered pursuant to the Intercompany Subordination Agreement, dated as of December 29, 2022 (as amended, restated, supplemented or otherwise modified from time to time, the “Intercom- pany Subordination Agreement”) by and among Diebold Nixdorf, Incorporated , an Ohio cor- poration (the “Company”) and the Subordinated Creditors and Obligors from time to time party thereto. Capitalized terms used but not otherwise defined herein shall have the meanings as- signed to them in the Intercompany Subordination Agreement.
1.Joinder in the Intercompany Subordination. The undersigned hereby agrees that on and after the date hereof, it shall be [an “Obligor”] [and] [a “Subordinated Cred- itor”] under and as defined in the Intercompany Subordination Agreement, hereby assumes and agrees to perform all of the obligations of [an Obligor] [and] [a Subordinated Creditor] thereun- der and agrees that it shall comply with and be fully bound by the terms of the Intercompany Subordination Agreement as if it had been a signatory thereto as of the date thereof; provided that the representations and warranties made by the undersigned thereunder shall be deemed true and correct as of the date of this Joinder.
2.Unconditional Joinder. The undersigned acknowledges that the under- signed’s obligations as a party to this Joinder are unconditional and are not subject to the execu- tion of one or more Joinders by other parties. The undersigned further agrees that it has joined and is fully obligated as [an Obligor] [and] [a Subordinated Creditor] under the Intercompany Subordination Agreement.
3.Incorporation by Reference. All terms and conditions of the Intercompany Subordination Agreement are hereby incorporated by reference in this Joinder as if set forth in full.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Joinder as of the day and year first above written.
[ ]
By: Name:
Title:
EXHIBIT G-1 CLOSING DATE CERTIFICATE
[FORM OF] CLOSING DATE CERTIFICATE THE UNDERSIGNED HEREBY CERTIFY AS FOLLOWS:
1.I, [•] am the [•] of Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”).
2.Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
3.The undersigned hereby certify, on behalf of the Parent Borrower and not in any individual capacity that as of the date hereof:
(xxxv)The representations and warranties of the Credit Parties set forth in the Credit Documents are true and correct in all material respects (it being understood and agreed that any representation or warranty which by its terms is made as of a specified date is required to be true and correct only as of such specified date, and that any representation
or warranty which is subject to any materiality qualifier is required to be true and correct in all respects).
(xxxvi)No event has occurred and is continuing or will result from the consummation of the Transactions that constitutes a Default or an Event of Default.
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title:
EXHIBIT G-2 SOLVENCY CERTIFICATE
[FORM OF] SOLVENCY CERTIFICATE
[•], 2022
This Solvency Certificate (this “Certificate”) is furnished to the Administrative Agent and the Lenders pursuant to Section 3.1(n) of that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
I, [•], the Chief Financial Officer of the Parent Borrower (after giving effect to the Transactions), in that capacity only and not in my individual capacity (and without personal liability), DO HEREBY CERTIFY on behalf of the Parent Borrower that as of the date hereof, after giving effect to the consummation of the Transactions (as defined in the TSA) (including without limitation the execution and delivery of the ABL Credit Agreement and the consummation of the transactions contemplated thereby including without limitation the making of the Revolving Loans and the use of proceeds of such Revolving Loans on the date hereof):
1.(i) each of the Fair Value and the Present Fair Salable Value of the assets of the Parent Borrower and its Subsidiaries taken as a whole exceed their Stated Liabilities and Identified Contingent Liabilities; (ii) the Parent Borrower and its Subsidiaries taken as a whole Do Not Have Unreasonably Small Capital; and (iii) the Parent Borrower and its Subsidiaries taken as a whole Can Pay Their Stated Liabilities and Identified Contingent Liabilities as they mature;
2.(i) in respect of the French Borrower, no French Insolvency Event has occurred
(ii) in respect of the UK Borrower, no UK Insolvency Event has occurred; (iii) in respect of the Italian Borrower, it is not in any of the situations referred to under art. 2446, 2447, 2482bis and/or 2482ter of the Italian Civil Code and no facts, events and/or circumstances have occurred which may be reasonably expected to cause the occurrence of any of the situations referred to under art. 2446, 2447, 2482bis and/or 2482ter of the Italian Civil Code; (iv) in respect of the Polish Borrower, no Polish Insolvency Event has occurred; (v) in respect of each German Borrower, no German Insolvency Event has occurred; (vi) in respect of the Swiss Borrower, no Swiss Insolvency Event has occurred; (vii) in respect of the Spanish Borrower, no Spanish Insolvency Event has occurred; (viii) in respect of the Dutch Borrower, no Dutch Insolvency Event has occurred; (ix) with respect to each Swedish Credit Party on an individual basis, each such Person is not insolvent pursuant to applicable law; and (x) in respect of the Belgian Borrower, no Belgian Insolvency Event has occurred;
3.with respect to each Canadian Credit Party on an individual basis, each such Person is not an “insolvent person” as defined in the Bankruptcy and Insolvency Act (Canada);
4.In reaching the conclusions set forth in this Certificate, the undersigned has
(i) reviewed the ABL Credit Agreement and other Credit Documents referred to therein and such other documents deemed relevant, (ii) reviewed the financial statements referred to in Section 3.1(g) of the ABL Credit Agreement (the “Financial Statements”) and (iii) made such other investigations and inquiries as the undersigned has deemed appropriate. The undersigned is familiar with the financial performance and prospects of the Parent Borrower and its Subsidiaries and hereby confirms that the Financial Statements were prepared in good faith and fairly present, in all material respects, the Parent Borrower’s and its Subsidiaries’ consolidated financial condition.
5.The financial information and assumptions which underlie and form the basis for the representations made in this Certificate were fair and reasonable when made and were made in good faith and continue to be fair and reasonable as of the date hereof.
6.The undersigned confirms and acknowledges that the Administrative Agent and the Lenders are relying on the truth and accuracy of this Certificate in connection with the Revolving Commitments and Loans under the ABL Credit Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title: Chief Financial Officer
EXHIBIT H
[RESERVED]
EXHIBIT I
PLEDGE AND SECURITY AGREEMENT
[Separately Attached]
Execution Version
SECURITY AGREEMENT
By
DIEBOLD NIXDORF, INCORPORATED,
as a Pledgor and
EACH OF THE SUBSIDIARY PLEDGORS FROM TIME TO TIME PARTY HERETO
and
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
Dated as of December 29, 2022
TABLE OF CONTENTS
Page
PREAMBLE 1
ARTICLE I DEFINITIONS AND INTERPRETATION
SECTION 1.2. INTERPRETATION 8
SECTION 1.3. RESOLUTION OF DRAFTING AMBIGUITIES 8
SECTION 1.4. PERFECTION CERTIFICATE 8
SECTION 2.1. GRANT OF SECURITY INTEREST 8
SECTION 2.2. FILINGS 9
SECTION 3.1. DELIVERY OF CERTIFICATED SECURITIES COLLATERAL 10
SECTION 3.2. PERFECTION OF UNCERTIFICATED SECURITIES
COLLATERAL 11
SECTION 3.3. FINANCING STATEMENTS AND OTHER FILINGS;
MAINTENANCE OF PERFECTED SECURITY INTEREST 11
SECTION 3.4. OTHER ACTIONS 12
SECTION 3.5. JOINDER OF ADDITIONAL SUBSIDIARY PLEDGORS 12
SECTION 3.6. SUPPLEMENTS; FURTHER ASSURANCES 13
SECTION 3.7. CHANGES IN NAME, ETC 13
-i-
Page
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 4.1. TITLE 14
SECTION 4.2. VALIDITY OF SECURITY INTEREST 14
SECTION 4.3. DEFENSE OF CLAIMS; TRANSFERABILITY OF
COLLATERAL 14
SECTION 4.4. OTHER FINANCING STATEMENTS 15
SECTION 4.5. DUE AUTHORIZATION AND ISSUANCE 15
SECTION 4.6. CONSENTS, ETC 15
SECTION 4.7. COLLATERAL 15
SECTION 4.8. INSURANCE 15
SECTION 4.9. INTELLECTUAL PROPERTY 15
SECTION 4.10. TAXES 16
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1. PLEDGE OF ADDITIONAL SECURITIES COLLATERAL 16
SECTION 5.2. VOTING RIGHTS; DISTRIBUTIONS; ETC 16
SECTION 5.3. DEFAULTS, ETC 18
SECTION 5.4. CERTAIN AGREEMENTS OF PLEDGORS AS HOLDERS OF
EQUITY INTERESTS 18
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL
SECTION 6.1. GRANT OF INTELLECTUAL PROPERTY LICENSE 18
SECTION 6.2. PROTECTION OF COLLATERAL AGENT’S SECURITY 19
SECTION 6.3. AFTER-ACQUIRED PROPERTY 19
SECTION 6.4. LITIGATION 20
ARTICLE VII
CERTAIN PROVISIONS CONCERNING RECEIVABLES
SECTION 7.1. MAINTENANCE OF RECORDS 21
SECTION 7.2. LEGEND 21
SECTION 7.3. MODIFICATION OF TERMS, ETC 21
SECTION 7.4. COLLECTION 21
Page
ARTICLE VIII
TRANSFERS
SECTION 8.1. TRANSFERS OF COLLATERAL 22
ARTICLE IX REMEDIES
SECTION 9.1. REMEDIES 22
SECTION 9.2. NOTICE OF SALE 24
SECTION 9.3. WAIVER OF NOTICE AND CLAIMS 24
SECTION 9.4. CERTAIN SALES OF COLLATERAL 24
SECTION 9.5. NO WAIVER; CUMULATIVE REMEDIES 26
SECTION 9.6. CERTAIN ADDITIONAL ACTIONS REGARDING
INTELLECTUAL PROPERTY 27
SECTION 9.7. DEPOSIT ACCOUNTS 27
SECTION 9.8. RECEIVABLES 27
SECTION 9.9. CASH PROCEEDS 29
ARTICLE X APPLICATION OF PROCEEDS
SECTION 10.1. APPLICATION OF PROCEEDS 29
ARTICLE XI MISCELLANEOUS
SECTION 11.1. CONCERNING COLLATERAL AGENT 29
SECTION 11.2. COLLATERAL AGENT MAY PERFORM; COLLATERAL
AGENT APPOINTED ATTORNEY-IN-FACT 31
SECTION 11.3. CONTINUING SECURITY INTEREST; ASSIGNMENT 32
SECTION 11.4. TERMINATION; RELEASE 32
SECTION 11.5. MODIFICATION IN WRITING 33
SECTION 11.6. NOTICES 33
SECTION 11.7. GOVERNING LAW, CONSENT TO JURISDICTION AND
SERVICE OF PROCESS; WAIVER OF JURY TRIAL 33
SECTION 11.8. SEVERABILITY OF PROVISIONS 33
SECTION 11.9. EXECUTION IN COUNTERPARTS 33
SECTION 11.10. BUSINESS DAYS 34
SECTION 11.11. NO CREDIT FOR PAYMENT OF TAXES OR IMPOSITION 34
Page
SECTION 11.12. NO CLAIMS AGAINST COLLATERAL AGENT 34
SECTION 11.13. NO RELEASE 34
SECTION 11.14. OBLIGATIONS ABSOLUTE 35
SECTION 11.15. INTERCREDITOR AGREEMENT GOVERNS 35
SIGNATURES............................................................................................................................. S-1
EXHIBIT 1 Form of Issuer’s Acknowledgment EXHIBIT 2 Form of Securities Pledge Amendment EXHIBIT 3 Form of Joinder Agreement
EXHIBIT 4 Form of Copyright Security Agreement EXHIBIT 5 Form of Patent Security Agreement EXHIBIT 6 Form of Trademark Security Agreement
SECURITY AGREEMENT
This SECURITY AGREEMENT, dated as of December 29, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time, this “Agree- ment”), made by DIEBOLD NIXDORF, INCORPORATED, an Ohio corporation (the “Parent Borrower”), and the Domestic Subsidiaries of the Parent Borrower from to time to time party hereto (the “Subsidiary Pledgors”), as pledgors, assignors and debtors (the Parent Borrower, to- gether with the Subsidiary Pledgors, in such capacities and together with any successors in such capacities, the “Pledgors” and each, a “Pledgor”), in favor of JPMORGAN CHASE BANK, N.A., as pledgee, assignee, secured party and collateral agent (in such capacities and together with any successors in such capacities, the “Collateral Agent”).
R E C I T A L S :
A.The Parent Borrower, the other borrowers party thereto (together with the Parent Borrower, the “Borrowers”), JPMORGAN CHASE BANK, N.A. (the “Administrative Agent”), the Collateral Agent and the lending institutions listed therein have entered into that certain credit agreement, dated as of December 29, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”), pursuant to which the Administrative Agent and the Lenders have agreed to make Loans to the Borrowers upon the terms and subject to the conditions set forth therein and the Borrowers have uncondi- tionally guaranteed the Obligations of each other Borrower.
B.The Parent Borrower and each Subsidiary Pledgor have entered into the Guaranty pursuant to which it has unconditionally guaranteed the Obligations.
C.The Parent Borrower and each Subsidiary Pledgor will receive substantial benefits from the extensions of credit under the ABL Credit Agreement and the other Credit Documents and each is, therefore, willing to enter into this Agreement.
D.This Agreement is given by each Pledgor in favor of the Collateral Agent for the benefit of the Secured Parties to secure the payment and performance of all of the Obliga- tions.
E.It is a condition to the obligations of the Lenders to make the Loans under the ABL Credit Agreement that each Pledgor execute and deliver the applicable Credit Docu- ments, including this Agreement.
A G R E E M E N T :
NOW THEREFORE, in consideration of the foregoing premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each Pledgor and the Collateral Agent hereby agree as follows:
-2- ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. Definitions.
(i)Unless otherwise defined herein or in the ABL Credit Agreement, capital- ized terms used herein that are defined in the UCC shall have the meanings assigned to them in the UCC; provided that in any event, the following terms shall have the meanings assigned to them in the UCC:
“Accounts”; “Bank”; “Chattel Paper”; “Commercial Tort Claim”; “Commodity Account”, “Commodity Contract”; “Documents”; “Electronic Chattel Paper”; “Equipment”; “Fixtures”; “General Intangible”; “Goods”, “Instruments”; “Inventory”; “Investment Property”; “Letter of Credit Rights”; “Letters of Credit”; “Money”; “Payment Intangibles”; “Proceeds”; “ Records”; “Securities Account”; “Security Entitlement”; “Supporting Obligations”; and “Tangi- ble Chattel Paper”.
(j)Terms used but not otherwise defined herein that are defined in the ABL Credit Agreement shall have the meanings given to them in the ABL Credit Agreement. Section
1.3 of the ABL Credit Agreement shall apply herein mutatis mutandis.
(k)The following terms shall have the following meanings:
“ABL Credit Agreement” shall have the meaning assigned to such term in Recital
A hereof.
“Account Debtor” shall mean each Person who is obligated on a Receivable or
Supporting Obligation related thereto.
“Additional Secured Parties” shall have the meaning assigned to such term in Sec- tion 11.1(g) hereof.
“Agreement” shall have the meaning assigned to such term in the Preamble
hereof.
“Cash Collateral Account” shall have the meaning assigned to such term in the
ABL Credit Agreement.
“Collateral” shall have the meaning assigned to such term in Section 2.1 hereof. “Collateral Agent” shall have the meaning assigned to such term in the Preamble
hereof.
-3-
“Collateral Support” shall mean all property (real or personal) assigned, hypothe- cated or otherwise securing any Collateral and shall include any security agreement or other agreement granting a lien or security interest in such real or personal property.
“Contracts” shall mean, collectively, with respect to each Pledgor, all sale, ser- vice, performance, equipment or property lease contracts, agreements and grants and all other contracts, agreements or grants (in each case, whether written or oral, or third party or intercom- pany), between such Pledgor and any third party, and all assignments, amendments, restate- ments, supplements, extensions, renewals, replacements or modifications thereof.
“Copyright Security Agreement” shall mean an agreement substantially in the form of Exhibit 4 hereto or otherwise in form and substance reasonably satisfactory to the Collat- eral Agent.
“Copyrights” shall mean, collectively, with respect to each Pledgor, all copyrights and works of authorship (whether statutory or common law, whether established or registered in the United States or any other country or any political subdivision thereof, whether registered or unregistered and whether published or unpublished) and all copyright registrations and applica- tions made by such Pledgor, in each case, whether now owned or hereafter created or acquired by or assigned to such Pledgor, together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s use of such copyrights, (ii) reissues, renewals, con- tinuations and extensions thereof and amendments thereto, (iii) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable with respect thereto, including dam- ages and payments for past, present or future infringements thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present or future infringements thereof.
“Deposit Account Control Agreement” shall mean an agreement, in form and sub- stance reasonably satisfactory to the Collateral Agent, which provides for the Collateral Agent to have control (including “control” as defined in Section 9-104 of the UCC) of “deposit accounts” (as defined in the UCC), as the same may be amended, supplemented, restated, replaced or other- wise modified from time to time.
“Deposit Accounts” shall mean, collectively, with respect to each Pledgor, (i) all “deposit accounts” as such term is defined in the UCC and in any event shall include all accounts and sub-accounts relating to any of the foregoing accounts and (ii) all cash, funds, checks, notes and instruments from time to time on deposit in any of the accounts or sub-accounts described in clause (i) of this definition.
“Distributions” shall mean, collectively, with respect to each Pledgor, all divi- dends, cash, options, warrants, rights, instruments, distributions, returns of capital or principal, income, interest, profits and other property, interests (debt or equity) or proceeds, including as a result of a split, revision, reclassification or other like change of the Pledged Securities, from time to time received, receivable or otherwise distributed to such Pledgor in respect of or in ex- change for any or all of the Pledged Securities or Intercompany Notes.
-4-
“General Intangibles” shall mean, collectively, with respect to each Pledgor, all “general intangibles,” as such term is defined in the UCC, of such Pledgor and, in any event, shall include (i) all of such Pledgor’s rights, title and interest in, to and under all Contracts and insurance policies (including all rights and remedies relating to monetary damages, including in- demnification rights and remedies, and claims for damages or other relief pursuant to or in re- spect of any Contract), (ii) all know-how and warranties relating to any of the Collateral or the Mortgaged Property, (iii) any and all other rights, claims, choses-in-action and causes of action of such Pledgor against any other person and the benefits of any and all collateral or other secu- rity given by any other person in connection therewith, (iv) all guarantees, endorsements and in- demnifications on, or of, any of the Collateral or any of the Mortgaged Property, (v) all lists, books, records, correspondence, ledgers, printouts, files (whether in printed form or stored elec- tronically), tapes and other papers or materials containing information relating to any of the Col- lateral or any of the Mortgaged Property, including all customer or tenant lists, identification of suppliers, data, plans, blueprints, specifications, designs, drawings, appraisals, recorded knowledge, surveys, studies, engineering reports, test reports, manuals, standards, processing standards, performance standards, catalogs, research data, computer and automatic machinery software and programs and the like, field repair data, accounting information pertaining to such Pledgor’s operations or any of the Collateral or any of the Mortgaged Property and all media in which or on which any of the information or knowledge or data or records may be recorded or stored and all computer programs used for the compilation or printout of such information, knowledge, records or data, (vi) all licenses, consents, permits, variances, certifications, authori- zations and approvals, however characterized, now or hereafter acquired or held by such Pledgor, including building permits, certificates of occupancy, environmental certificates, industrial per- mits or licenses and certificates of operation and (vii) all rights to reserves, deferred payments, deposits, refunds, indemnification of claims and claims for tax or other refunds against any Gov- ernmental Authority.
“Goodwill” shall mean, collectively, with respect to each Pledgor, the goodwill connected with such Pledgor’s business including all goodwill connected with (i) the use of and symbolized by any Trademark or Intellectual Property License with respect to any Trademark in which such Pledgor has any interest and (ii) all product lines of such Pledgor’s business.
“Instruments” shall mean, collectively, with respect to each Pledgor, all “instru- ments,” as such term is defined in Article 9, rather than Article 3, of the UCC, and shall include all promissory notes, drafts, bills of exchange or acceptances.
“Intellectual Property” shall mean, collectively, all worldwide intellectual prop- erty, including the Patents, Trademarks, Copyrights, Goodwill and know-how, trade secrets, cus- tomer and supplier lists, proprietary information, inventions, methods, processes, procedures, formulae, descriptions, compositions, technical data, drawings, specifications, name plates, cata- logs, confidential information and the right to limit the use or disclosure thereof by any person, pricing and cost information, business and marketing plans and proposals, and such other assets which relate to such goodwill (but, excluding in any case, Excluded Assets).
-5-
“Intellectual Property Collateral” shall mean the Intellectual Property included in
“Intellectual Property Licenses” shall mean, collectively, with respect to each
Pledgor, all license and distribution agreements with, and covenants not to sue, any other party with respect to any Intellectual Property Collateral, whether such Pledgor is a licensor or licen- see, distributor or distributee under any such license or distribution agreement, together with any and all (i) renewals, extensions, supplements, amendments and continuations thereof, (ii) in- come, fees, royalties, damages, claims and payments now and hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements, breaches or violations thereof, (iii) rights to sue for past, present and future in- fringements, breaches or violations thereof and (iv) other rights to use, exploit or practice any or all of the Intellectual Property Collateral.
“Intercompany Notes” shall mean, with respect to each Pledgor, all intercompany notes described in Schedule 8(b) to the Perfection Certificate and intercompany notes hereafter acquired by such Pledgor and all certificates, instruments or agreements evidencing such inter- company notes, and all assignments, amendments, restatements, supplements, extensions, renew- als, replacements or modifications thereof to the extent permitted pursuant to the terms hereof.
“Investment Property” shall mean a security, whether certificated or uncertifi- cated, Security Entitlement, Securities Account, Commodity Contract or Commodity Account, excluding, however, the Securities Collateral.
“Joinder Agreement” shall mean an agreement substantially in the form of Ex- hibit 3 hereto or otherwise in form and substance reasonably satisfactory to the Collateral Agent.
“Material Intellectual Property Collateral” shall mean any Intellectual Property Collateral that is material (i) to the use and operation of the Collateral or Mortgaged Property, taken as a whole, or (ii) to the business, results of operations or condition, financial or otherwise, of the Pledgors, taken as a whole.
“Mortgaged Property” shall mean the Mortgaged Property (as defined in the ABL Credit Agreement) owned by any Pledgor.
“Parent Borrower” shall have the meaning assigned to such term in the Preamble
hereof.
“Patent Security Agreement” shall mean an agreement substantially in the form of
Exhibit 5 hereto or otherwise in form and substance reasonably satisfactory to the Collateral Agent.
“Patents” shall mean, collectively, with respect to each Pledgor, all patents issued or assigned to, and all patent applications and registrations made by, such Pledgor (whether es- tablished or registered or recorded in the United States or any other country or any political sub- division thereof), together with any and all (i) rights and privileges arising under applicable law
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with respect to such Pledgor’s rights with respect to use of any patents, (ii) inventions, discover- ies, designs and improvements described and claimed therein, (iii) reissues, divisionals, continu- ations, renewals, reexaminations, extensions and continuations-in-part thereof, (iv) income, fees, royalties, damages, claims and payments now or hereafter due and/or payable thereunder and with respect thereto including damages and payments for past, present or future infringements thereof, (v) rights corresponding thereto throughout the world and (vi) rights to sue for past, pre- sent or future infringements thereof.
“Perfection Certificate” shall mean that certain perfection certificate dated De- cember 29, 2022 (the “Original Perfection Certificate”) executed and delivered by each Pledgor in favor of the Collateral Agent for the benefit of the Secured Parties, and each other perfection certificate (which shall be substantially in the form of the Original Perfection Certificate or oth- erwise in form reasonably acceptable to the Collateral Agent) executed and delivered by the ap- plicable Subsidiary Pledgor in favor of the Collateral Agent for the benefit of the Secured Parties contemporaneously with the execution and delivery of each Joinder Agreement executed in ac- cordance with Section 3.5 hereof, in each case, as the same may be amended, amended and re- stated, supplemented or otherwise modified from time to time in accordance herewith or with the ABL Credit Agreement or upon the request of the Collateral Agent.
“Permitted Lien” shall mean any Lien permitted to exist on the Collateral pursu- ant to Section 6.5 of the ABL Credit Agreement.
“Pledge Amendment” shall have the meaning assigned to such term in Section 5.1
hereof.
“Pledged Securities” shall mean, collectively, with respect to each Pledgor, (i) all
issued and outstanding Equity Interests of each issuer set forth in the Perfection Certificate as be- ing owned by such Pledgor and all options, warrants, rights, agreements and additional Equity Interests of whatever class of any such issuer acquired by such Pledgor (including by issuance), together with all rights, privileges, authority and powers of such Pledgor relating to such Equity Interests in each such issuer or under any Organizational Document of each such issuer, and the certificates, instruments and agreements representing such Equity Interests and any and all inter- est of such Pledgor in the entries on the books of any financial intermediary pertaining to such Equity Interests, (ii) all Equity Interests of any issuer, which Equity Interests are hereafter owned or acquired by such Pledgor (including by issuance) and all options, warrants, rights, agreements and additional Equity Interests of whatever class of any such issuer acquired by such Pledgor (in- cluding by issuance), together with all rights, privileges, authority and powers of such Pledgor relating to such Equity Interests or under any Organizational Document of any such issuer, and the certificates, instruments and agreements representing such Equity Interests and any and all interest of such Pledgor in the entries on the books of any financial intermediary pertaining to such Equity Interests, from time to time acquired by such Pledgor in any manner, and (iii) all Eq- uity Interests issued in respect of the Equity Interests referred to in clause (i) or (ii) upon any consolidation or merger of any issuer of such Equity Interests; provided that Pledged Securities shall not include any Excluded Assets.
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“Pledgor” shall have the meaning assigned to such term in the Preamble hereof. “Receivables” shall mean all (i) Accounts, (ii) Chattel Paper, (iii) Payment Intan-
gibles, (iv) General Intangibles, (v) Instruments and (vi) all other rights to payment, whether or
not earned by performance, for goods or other property sold, leased, licensed, assigned or other- wise disposed of, or services rendered or to be rendered, regardless of how classified under the UCC together with all of the Pledgors’ rights, if any, in any goods or other property giving rise to such right to payment and all Collateral Support and Supporting Obligations related thereto and all Records relating thereto.
“Securities Account Control Agreement” shall mean an agreement in form and substance reasonably satisfactory to the Collateral Agent, which provides for the Collateral Agent to have control (including “control” as defined in Section 8-106 of the UCC) of “securities accounts” (as defined in the UCC), as the same may be amended, supplemented, restated, re- placed or otherwise modified from time to time.
“Securities Act” shall mean the Securities Act of 1933, as amended.
“Securities Collateral” shall mean, collectively, the Pledged Securities, the Inter- company Notes and the Distributions; provided that Pledged Securities shall not include any Ex- cluded Assets.
“Subsidiary Pledgors” shall have the meaning assigned to such term in the Pream-
“Termination Date” shall have the meaning assigned to such term in Section 11.4 “Trademark Security Agreement” shall mean an agreement substantially in the
form of Exhibit 6 hereto or otherwise in form and substance reasonably satisfactory to the Collat- eral Agent.
“Trademarks” shall mean, collectively, with respect to each Pledgor, all trade- marks (including service marks), slogans, logos, certification marks, trade dress, uniform re- source locators (URLs), domain names, corporate names, brand names, and trade names, whether registered or unregistered, owned by or assigned to such Pledgor and all registrations and applications for the foregoing (whether statutory or common law and whether established or registered in the United States or any other country or any political subdivision thereof) together with any and all (i) rights and privileges arising under applicable law with respect to such Pledgor’s use of any of the foregoing, (ii) extensions and renewals thereof and amendments thereto, (iii) income, fees, royalties, damages and payments now and hereafter due and/or paya- ble thereunder and with respect thereto, including damages, claims and payments for past, pre- sent or future infringements, dilutions or violations thereof, (iv) rights corresponding thereto throughout the world and (v) rights to sue for past, present and future infringements, dilutions or violations thereof.
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“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided, however, that, at any time, if by reason of mandatory provi- sions of law, any or all of the perfection or priority of the Collateral Agent’s security interest in any item or portion of the Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Com- mercial Code as in effect, at such time, in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions relating to such pro- visions.
SECTION 1.2. Interpretation. The rules of interpretation specified in the ABL Credit Agreement (including Section 1.2 thereof) shall be applicable to this Agreement.
SECTION 1.3. Resolution of Drafting Ambiguities. Each Pledgor acknowl- edges and agrees that it was represented by counsel in connection with the execution and deliv- ery hereof, that it and its counsel reviewed and participated in the preparation and negotiation hereof and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party (i.e., the Collateral Agent) shall not be employed in the interpretation hereof.
SECTION 1.4. Perfection Certificate. The Collateral Agent and each Pledgor agree that the Perfection Certificate and all descriptions of Collateral, schedules, amendments and supplements thereto are and shall at all times remain a part of this Agreement.
ARTICLE II GRANT OF SECURITY
SECTION 2.1. Grant of Security Interest. As collateral security for the pay- ment and performance in full of all the Obligations, each Pledgor hereby pledges and grants to the Collateral Agent for the benefit of the Secured Parties, a lien on and security interest in all of the right, title and interest of such Pledgor in, to and under the following property, wherever lo- cated, and whether now existing or hereafter arising or acquired from time to time (collectively, the “Collateral”):
(i)all Accounts;
(ii)all Equipment, Goods, Inventory and Fixtures;
(iii)all Documents, Instruments and Chattel Paper;
(iv)all Letters of Credit and Letter of Credit Rights;
(v)all Securities Collateral;
(vi)all Investment Property;
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(vii)all Intellectual Property;
(viii)the Commercial Tort Claims, if any, described on Schedule 9 to the Per- fection Certificate;
(ix)all General Intangibles;
(x)all Money and all Deposit Accounts;
(xi)all Supporting Obligations;
(xii)all Intellectual Property Licenses, consulting agreements, and engineer- ing contracts;
(xiii)all books and records relating to the Collateral; and
(xiv)to the extent not covered by clauses (i) through (xiii) of this sentence, all other personal property of such Pledgor, whether tangible or intangible, and all Proceeds and products of each of the foregoing and all accessions to, substitutions and replacements for, and rents, profits and products of, each of the foregoing, any and all Proceeds of any insurance, indemnity, warranty or guaranty payable to such Pledgor from time to time with re- spect to any of the foregoing.
Notwithstanding anything to the contrary contained in clauses (i) through (xiv) above or otherwise set forth in this Agreement, the security interest created by this Agreement shall not extend to, and the term “Collateral” shall not include, any Excluded Assets. For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement or in any other Credit Document, no representation or warranty is made with respect to the creation or perfec- tion of a security interest in any property to the extent that such creation or perfection is not re- quired under the terms of the Credit Documents.
SECTION 2.2. Filings. (a) Each Pledgor hereby irrevocably authorizes the Collateral Agent at any time and from time to time to file in any relevant United States jurisdic- tion any financing statements (including fixture filings) and amendments thereto that contain the information required by Article 9 of the Uniform Commercial Code of each applicable jurisdic- tion for the filing of any financing statement or amendment relating to the Collateral, including
(i) whether such Pledgor is an organization and the type of organization, (ii) any financing or continuation statements or other documents without the signature of such Pledgor where permit- ted by law, including the filing of a financing statement describing the Collateral as “all assets now owned or hereafter acquired by the Pledgor or in which Pledgor otherwise has rights” and
(iii) in the case of a financing statement filed as a fixture filing or covering Collateral constitut- ing minerals or the like to be extracted or timber to be cut, a sufficient description of the real property to which such Collateral relates. Each Pledgor agrees to provide all information de- scribed in the immediately preceding sentence to the Collateral Agent promptly upon request by the Collateral Agent.
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(b)Each Pledgor hereby ratifies its authorization for the Collateral Agent to file in any relevant United States jurisdiction any financing statements relating to the Collateral if filed prior to the date hereof.
(c)Each Pledgor hereby further authorizes the Collateral Agent to file filings with the United States Patent and Trademark Office or United States Copyright Office (or any successor office), including this Agreement, any Copyright Security Agreement, any Patent Se- curity Agreement and any Trademark Security Agreement, or other documents for the purpose of perfecting, confirming, continuing, enforcing or protecting the security interest granted by such Pledgor hereunder, without the signature of such Pledgor, and naming such Pledgor, as debtor, and the Collateral Agent, as secured party.
(d)For the avoidance of doubt, the Collateral Agent is under no obligation to make any filings or to take any other action under this Section 2.2 or otherwise in this Agree- ment.
ARTICLE III
PERFECTION; SUPPLEMENTS; FURTHER ASSURANCES; USE OF COLLATERAL
SECTION 3.1. Delivery of Certificated Securities Collateral. Subject to Sec- tion 11.15, each Pledgor represents and warrants that all certificates, agreements or instruments representing or evidencing the Securities Collateral in existence on the date hereof have been or will be delivered to the Collateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)) in accordance with and to the extent required by the terms of the ABL Credit Agreement, in each case in suitable form for transfer by delivery or accompanied by duly executed instruments of transfer or assignment in blank and that upon such delivery the Collateral Agent has a perfected first priority security interest therein. Each Pledgor hereby agrees that all certificates, agreements or instruments representing or evidencing Securities Col- lateral acquired by such Pledgor after the date hereof shall within the applicable time period re- quired by Section 5.9 of the ABL Credit Agreement be delivered to and held by or on behalf of the Collateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)) pursuant hereto and to the extent required by the ABL Credit Agreement. All cer- tificated Securities Collateral shall be in suitable form for transfer by delivery or shall be accom- panied by duly executed instruments of transfer or assignment in blank, all in form and substance reasonably satisfactory to the Collateral Agent. Subject to Section 11.15, the Collateral Agent shall have the right, with written notice to the Parent Borrower at any time upon the occurrence and during the continuance of any Event of Default, to endorse, assign or otherwise transfer to or to register in the name of the Collateral Agent or any of its nominees or endorse for negotiation any or all of the Securities Collateral, without any indication that such Securities Collateral is subject to the security interest hereunder. In addition, upon the occurrence and during the con- tinuance of an Event of Default and subject to Section 11.15, the Collateral Agent shall have the
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right at any time to exchange certificates representing or evidencing Securities Collateral for cer- tificates of smaller or larger denominations.
SECTION 3.2. Perfection of Uncertificated Securities Collateral.
(a)Each Pledgor understands that the Collateral Agent desires a perfected first priority security interest in all uncertificated Pledged Securities pledged by it hereunder that are in existence on the date hereof. Each Pledgor hereby agrees that if any of the Pledged Secu- rities are at any time not evidenced by certificates of ownership, then each applicable Pledgor shall, to the extent permitted by applicable law and so requested by the Collateral Agent (or if an Event of Default has occurred and is continuing, automatically), (i) cause the issuer of Pledged Securities that is not a party to this Agreement to execute and deliver to the Collateral Agent an acknowledgment of the pledge of such Pledged Securities substantially in the form of Exhibit 1 hereto or such other form that is reasonably satisfactory to the Collateral Agent and (ii) if neces- sary to perfect a security interest in such uncertificated Pledged Securities, cause such pledge to be recorded on the equityholder register or the books of the issuer, execute any customary pledge forms or other documents necessary or reasonably requested to complete the pledge and give the Collateral Agent the right to transfer such Pledged Securities under the terms hereof.
(b)In the case of each Pledgor which is an issuer of Securities Collateral, such Pledgor agrees (i) to be bound by the terms of this Agreement relating to the Securities Collateral issued by it and will comply with such terms insofar as such terms are applicable to it and (ii) that it will during the continuance of an Event of Default comply with instructions of the Collat- eral Agent with respect to such Securities Collateral (including all Equity Interests of such is- suer) without further consent by such Pledgor.
SECTION 3.3. Financing Statements and Other Filings; Maintenance of Per- fected Security Interest. Each Pledgor represents and warrants that all financing statements, agreements, instruments and other documents necessary to perfect the security interest granted by it to the Collateral Agent in respect of the Collateral have been delivered to the Collateral Agent in completed and, to the extent necessary or appropriate, duly executed form for filing in each governmental, municipal or other office specified in Schedule 13 to the Perfection Certifi- cate, in each case, to the extent required by the ABL Credit Agreement to be delivered, com- pleted or executed on the Closing Date. Each Pledgor agrees that at the sole cost and reasonable expense of the Pledgors, such Pledgor will maintain the security interest created by this Agree- ment in the Collateral as a perfected security interest with the priority set forth in the Intercredi- tor Agreement subject only to Permitted Liens. Notwithstanding the foregoing or anything to the contrary herein or in any other Credit Document, except with respect to any action under the laws of any Specified Foreign Jurisdiction to create or perfect a security interest in the Equity In- terests issued by any Subsidiary organized in such applicable Specified Foreign Jurisdiction, no Pledgor shall be required to take any action under the law of any non-U.S. jurisdiction to create or perfect a security interest in any assets except to the extent required by the ABL Credit Agree- ment.
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SECTION 3.4. Other Actions. In order to further ensure the attachment, per- fection and priority of, and the ability of the Collateral Agent to enforce, the Collateral Agent’s security interest in the Collateral, each Pledgor represents and warrants (as to itself) as follows and agrees, in each case at such Pledgor’s own expense, to take the following actions with re- spect to the following Collateral:
(a)Instruments and Tangible Chattel Paper. As of the date hereof, no amounts in excess of $2,000,000 individually payable under or in connection with any of the Col- lateral are evidenced by any Instrument or Tangible Chattel Paper other than such Instru- ments and Tangible Chattel Paper listed in Schedule 8(b) to the Perfection Certificate. As of the date hereof, to the extent required by the ABL Credit Agreement to be delivered, completed or executed on the Closing Date, each Instrument listed in Schedule 8(b) to the Perfection Certificate, to the extent requested by the Collateral Agent, has been properly endorsed, assigned and delivered to the Collateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)), accompanied by instruments of trans- fer or assignment duly executed in blank. If any amount then payable under or in connec- tion with any of the Collateral shall be evidenced by any Instrument and exceeds
$2,000,000, the Pledgor acquiring such Instrument shall promptly (but in any event within forty-five (45) days after receipt thereof) endorse, assign and deliver the same to the Col- lateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)), accompanied by such instruments of transfer or assignment duly executed in blank as the Collateral Agent may reasonably request from time to time.
(b)Commercial Tort Claims. As of the date hereof, each Pledgor hereby rep- resents and warrants that it holds no Commercial Tort Claims with a value, individually, equal to or greater than $2,000,000 other than those listed in Schedule 9 to the Perfection Certificate. If any Pledgor shall at any time hold or acquire a Commercial Tort Claim with a value, individually, equal to or greater than $2,000,000, such Pledgor shall promptly no- tify the Collateral Agent in writing signed by such Pledgor of the brief details thereof and grant to the Collateral Agent in such writing a security interest therein and in the Proceeds thereof, all upon the terms of this Agreement, with such writing to be in form and substance reasonably satisfactory to the Collateral Agent.
SECTION 3.5. Joinder of Additional Subsidiary Pledgors. The Pledgors shall cause each Domestic Subsidiary of the Parent Borrower which, from time to time, after the date hereof shall be required to pledge any assets to the Collateral Agent for the benefit of the Se- cured Parties pursuant to the provisions of the ABL Credit Agreement, to execute and deliver to the Collateral Agent (i) a Joinder Agreement substantially in the form of Exhibit 3 hereto or oth- erwise in form and substance reasonably satisfactory to the Collateral Agent and (ii) a Perfection Certificate, in each case, within the time period required under Section 5.9 and 5.11 of the ABL Credit Agreement and, upon such execution and delivery, such Subsidiary shall constitute a “Subsidiary Pledgor” and a “Pledgor” for all purposes hereunder with the same force and effect as if originally named as a Subsidiary Pledgor and Pledgor herein. The execution and delivery of such Joinder Agreement shall not require the consent of any Pledgor hereunder. The rights and
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obligations of each Pledgor hereunder shall remain in full force and effect notwithstanding the addition of any new Subsidiary Pledgor and Pledgor as a party to this Agreement.
SECTION 3.6. Supplements; Further Assurances. Each Pledgor shall take such further actions, and execute and/or deliver to the Collateral Agent such additional financing statements, amendments, assignments, control and other agreements, supplements, powers and instruments, as the Collateral Agent may in its reasonable judgment deem necessary or appropri- ate in order to create, perfect, preserve and protect the security interest in the Collateral as pro- vided herein and the rights and interests granted to the Collateral Agent hereunder, to carry into effect the purposes hereof or better to assure and confirm the validity, enforceability and priority of the Collateral Agent’s security interest in the Collateral or permit the Collateral Agent to exer- cise and enforce its rights, powers and remedies hereunder with respect to any Collateral in ac- cordance with the terms hereof and applicable law, including the filing of financing statements, continuation statements and other documents (including this Agreement) under the Uniform Commercial Code (or other similar laws) in effect in any applicable jurisdiction, with respect to the security interest created hereby, all in form reasonably satisfactory to the Collateral Agent and in such offices (including the United States Patent and Trademark Office and the United States Copyright Office) wherever required by law to perfect, continue and maintain the validity, enforceability and priority of the security interest in the Collateral as provided herein and to pre- serve the other rights and interests granted to the Collateral Agent hereunder, as against third par- ties, with respect to the Collateral, in each case, to the extent required by the ABL Credit Agree- ment. Notwithstanding the foregoing or anything to the contrary herein or in any other Credit Document, except with respect to any action under the laws of any Specified Foreign Jurisdiction to create or perfect a security interest in the Equity Interests issued by any Subsidiary organized in such applicable Specified Foreign Jurisdiction, no Pledgor shall be required to take any action under the law of any non-U.S. jurisdiction to create or perfect a security interest in any assets ex- cept to the extent required by the ABL Credit Agreement.
If an Event of Default has occurred and is continuing, the Collateral Agent may institute and maintain, in its own name or in the name of any Pledgor, such suits and proceedings as the Collateral Agent may be advised by counsel shall be necessary or expedient to prevent any material impairment of the security interest in or the perfection thereof in the Collateral. All of the foregoing shall be at the sole cost and reasonable expense of the Pledgors. The Pledgors and the Collateral Agent acknowledge and agree that this Agreement is intended to grant to the Col- lateral Agent for the benefit of the Secured Parties a security interest in and Lien upon the Collat- eral and shall not constitute or create a present assignment of any of the Collateral. Notwithstand- ing the foregoing or anything else in this Agreement, at no time shall any financing statement, amendment, assignment, agreement, supplement, power, instrument or other perfection action be authorized or required except to the extent required by the ABL Credit Agreement.
SECTION 3.7. Changes in Name, etc. Each Pledgor shall furnish to the Col- lateral Agent promptly (and in any event within ten (10) days thereof (or such longer period as the Collateral Agent may agree in its sole discretion)) written notice of any change in (i) such Pledgor’s corporate or organization name, (ii) such Pledgor’s identity or organizational structure, or (iii) such Pledgor’s jurisdiction of organization; provided that no Pledgor shall effect or permit
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any such change unless all filings have been made, or will have been made with ten (10) days following such change (or such longer period as the Collateral Agent may agree in its sole dis- cretion), under the Uniform Commercial Code that are required in order for the Collateral Agent to continue at all times following such change to have a valid, legal and first priority perfected security interest subject only to Permitted Liens in all the Collateral in which a security interest may be perfected by such filing, for the benefit of the Secured Parties. Each Pledgor agrees to provide the Collateral Agent, promptly upon its reasonable request, the certified Organizational Documents reflecting any of the changes in the foregoing sentence.
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS
Each Pledgor represents, warrants and covenants as follows:
SECTION 4.1. Title. Except for (a) the security interest granted to the Collat- eral Agent for the benefit of the Secured Parties pursuant to this Agreement and other Permitted Liens and (b) Dispositions permitted under Section 6.3 of the ABL Credit Agreement, such Pledgor owns and has rights and, as to Collateral acquired by it from time to time after the date hereof, will own and have rights in each item of Collateral pledged by it hereunder, which Col- lateral shall be free and clear of any and all Liens or claims of others other than Permitted Liens. In addition, no Liens or claims exist on the Securities Collateral, other than Permitted Liens.
SECTION 4.2. Validity of Security Interest. The security interest in and Lien on the Collateral granted hereunder to the Collateral Agent for the benefit of the Secured Parties constitutes (a) a legal and valid security interest in all the Collateral securing the payment and performance of the Obligations, and (b) subject to (i) the filings and other actions described in Schedule 13 to the Perfection Certificate (to the extent required to be listed on the schedules to the Perfection Certificate as of the date this representation is made or deemed made) and (ii) sub- ject to Section 11.15, the taking of possession or control by the Collateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)) of Collateral with respect to which a security interest may be perfected only by possession or control, a perfected security interest in all the Collateral. The security interest and Lien granted to the Collateral Agent for the benefit of the Secured Parties pursuant to this Agreement in and on the Collateral will at all times constitute a perfected, continuing security interest therein, prior to all other Liens on the Collateral except for Permitted Liens.
SECTION 4.3. Defense of Claims; Transferability of Collateral. Subject to Section 5.9 of the ABL Credit Agreement, each Pledgor shall, at its own cost and reasonable ex- pense, defend title to the Collateral pledged by it hereunder and the security interest therein and Lien thereon granted to the Collateral Agent and the priority thereof against all claims and de- mands of all persons, at its own cost and reasonable expense, at any time claiming any interest therein adverse to the Collateral Agent or any other Secured Party other than Permitted Liens.
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SECTION 4.4. Other Financing Statements. It has not filed, nor authorized any third party to file, any valid or effective financing statement (or similar statement, instrument of registration or public notice under the law of any jurisdiction) covering or purporting to cover any interest of any kind in the Collateral, except such as have been filed in favor of the Collateral Agent pursuant to this Agreement or in favor of any holder of a Permitted Lien with respect to such Permitted Lien. Other than as permitted by the ABL Credit Agreement, no Pledgor shall execute, authorize or permit to be filed in any public office any financing statement (or similar statement, instrument of registration or public notice under the law of any jurisdiction) relating to any Collateral, except financing statements and other statements and instruments filed or to be filed in respect of and covering the security interests granted by such Pledgor to a holder of Per- mitted Liens.
SECTION 4.5. Due Authorization and Issuance. All of the Pledged Securities existing on the date hereof have been, and to the extent any Pledged Securities are hereafter is- sued, such Pledged Securities will be, upon such issuance, duly authorized, validly issued and fully paid and non-assessable, in each case, to the extent such concepts are applicable. There is no amount or other obligation owing by any Pledgor to any issuer of the Pledged Securities in exchange for or in connection with the issuance of the Pledged Securities or any Pledgor’s status as a partner or a member of any issuer of the Pledged Securities.
SECTION 4.6. Consents, etc. If the Collateral Agent desires to exercise any remedies, voting or consensual rights or attorney-in-fact powers set forth in this Agreement and reasonably determines it necessary to obtain any approvals or consents of any Governmental Au- thority or any other person therefor, then, if an Event of Default has occurred and is continuing, upon the reasonable request of the Collateral Agent, such Pledgor agrees to use its best efforts to assist and aid the Collateral Agent to obtain as soon as practicable any necessary approvals or consents for the exercise of any such remedies, rights and powers.
SECTION 4.7. Collateral. All information set forth herein, including the schedules hereto, and all information contained in any documents, schedules and lists heretofore delivered to any Secured Party, including the Perfection Certificate and the schedules thereto, in connection with this Agreement, in each case, relating to the Collateral, is accurate and complete in all material respects as of the applicable date of delivery. The Collateral described on the schedules to the Perfection Certificate (to the extent required to be described therein) constitutes all of the material property of such type of Collateral owned or held by the Pledgors as of the date thereof.
SECTION 4.8. Insurance. If the proceeds of any insurance claim are paid to any Pledgor after the Collateral Agent has exercised its right to foreclose after an Event of De- fault, such proceeds shall be held in trust for the benefit of the Collateral Agent and promptly af- ter receipt thereof shall be paid to the Collateral Agent for application in accordance with the ABL Credit Agreement.
SECTION 4.9. Intellectual Property. Schedules 5(a), 5(b) and 5(c) to the Per- fection Certificate set forth, as of the Closing Date, a complete and accurate list, with respect to
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such Pledgor, of (a) all applied for, issued or registered Patents owned by or licensed to such Pledgor, (b) all unregistered, applied for, or registered or registered Trademarks owned by or li- censed to such Pledgor, and (c) all applied for or registered Copyrights owned by or licensed to such Pledgor, respectively, in each case truly and completely, specifying the name of the regis- tered owner, title, registration or application number, registration or filing date, and, if applica- ble, the licensee, licensor and date of license agreement. All such Intellectual Property Collateral is exclusively owned, beneficially and of record, by such Pledgor, except as set forth on Sched- ules 5(a), 5(b) and 5(c) to the Perfection Certificate, and free and clear of Liens other than Per- mitted Liens. All Material Intellectual Property Collateral owned by such Pledgor is valid, sub- sisting, unexpired and enforceable, and has not been abandoned.
SECTION 4.10. Taxes. Each Pledgor (or the regarded owner of such Pledgor, if such Pledgor is a disregarded entity for U.S. federal tax purposes) shall deliver to the Secured Party, as reasonably requested by the Secured Party and at the time or times reasonably requested by the Secured Party, a properly completed and executed Internal Revenue Service Form W-8 or W-9 of such Pledgors, or any other applicable similar U.S. or non-U.S. tax forms, to reduce or eliminate any applicable taxes on the delivery or maintenance of the Collateral.
ARTICLE V
CERTAIN PROVISIONS CONCERNING SECURITIES COLLATERAL
SECTION 5.1. Pledge of Additional Securities Collateral. Subject to Section 11.15, each Pledgor shall, upon obtaining any Pledged Securities or Intercompany Notes of any person required to be pledged hereunder, accept the same in trust for the benefit of the Collateral Agent and promptly (but in any event within forty-five (45) days after receipt thereof (or such later date as agreed by the Collateral Agent)) deliver to the Collateral Agent a pledge amend- ment, duly executed by such Pledgor, in substantially the form of Exhibit 2 hereto or otherwise in form and substance reasonably satisfactory to the Collateral Agent (each, a “Pledge Amend- ment”), and the certificates and other documents required under Section 3.1 and Section 3.2 hereof in respect of the additional Pledged Securities or Intercompany Notes which are to be pledged pursuant to this Agreement, and confirming the attachment of the Lien hereby created on and in respect of such additional Pledged Securities or Intercompany Notes. Each Pledgor hereby authorizes the Collateral Agent to attach each Pledge Amendment to this Agreement and agrees that all Pledged Securities or Intercompany Notes listed on any Pledge Amendment deliv- ered to the Collateral Agent shall for all purposes hereunder be considered Collateral.
SECTION 5.2. Voting Rights; Distributions; etc. So long as no Event of De- fault shall have occurred and be continuing:
(a)(i) Each Pledgor shall be entitled to exercise any and all voting and other consensual rights pertaining to the Securities Collateral or any part thereof for any purpose not inconsistent with the terms or purposes of this Agreement, the ABL Credit Agreement or any other document evidencing the Obligations.
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(i) (ii) Each Pledgor shall be entitled to receive and retain, and to utilize free and clear of the Lien hereof, any and all Distributions, but only if and to the extent made in accordance with the provisions of the ABL Credit Agreement; provided, however, that, subject to Section 11.15, any and all such Distributions consisting of rights or interests in the form of certificated securities (other than to the extent Excluded Assets) shall be forthwith delivered to the Collateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)) to hold as Collateral and shall, if received by any Pledgor, be received in trust for the benefit of the Collateral Agent, be segregated from the other property or funds of such Pledgor and be promptly (but in any event within forty-five
(45) days after receipt thereof, or such longer period as acceptable to the Collateral Agent) delivered to the Collateral Agent (or its agent or bailee (including any bailee pursuant to the Intercreditor Agreement)) as Collateral in the same form as so received (with any nec- essary endorsement).
(b)So long as no Event of Default shall have occurred and be continuing, the Collateral Agent shall be deemed without further action or formality to have granted to each Pledgor all necessary consents relating to voting rights and shall, if necessary, upon written request of any Pledgor and at the sole cost and reasonable expense of the Pledgors, from time to time execute and deliver (or cause to be executed and delivered) to such Pledgor all such instruments as such Pledgor may reasonably request in order to permit such Pledgor to exercise the voting and other rights which it is entitled to exercise pursuant to Section 5.2(a)(i) hereof and to receive the Distributions which it is authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof.
(c)Subject to Section 11.15, upon the occurrence and during the continuance of any Event of Default described in Sections 8.1(f) or 8.1(g) of the ABL Credit Agreement, or upon written notice by the Collateral Agent to the Parent Borrower in the case of any other Event of Default:
(xxxvii)All rights of each Pledgor to exercise the voting and other consensual rights it would otherwise be entitled to exercise pursuant to Section 5.2(a)(i) hereof shall immediately cease, and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to exercise such voting and other con- sensual rights.
(xxxviii)All rights of each Pledgor to receive Distributions which it would other- wise be authorized to receive and retain pursuant to Section 5.2(a)(ii) hereof shall imme- diately cease and all such rights shall thereupon become vested in the Collateral Agent, which shall thereupon have the sole right to receive and hold as Collateral such Distribu- tions (other than to the extent constituting Excluded Assets), subject to the terms of the ABL Credit Agreement.
(d)Each Pledgor shall, at its sole cost and reasonable expense, from time to time execute and deliver to the Collateral Agent appropriate instruments as the Collateral Agent may reasonably request in order to permit the Collateral Agent to exercise the voting and other
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rights which it may be entitled to exercise pursuant to Section 5.2(a)(i) hereof and to receive all Distributions which it may be entitled to receive under Section 5.2(c)(ii) hereof.
(e)All Distributions which are received by any Pledgor contrary to the provi- sions of Section 5.2(a)(ii) hereof shall be received in trust for the benefit of the Collateral Agent, shall be segregated from other funds of such Pledgor and, subject to Section 11.15, shall immedi- ately be paid over to the Collateral Agent as Collateral in the same form as so received (with any necessary endorsement).
SECTION 5.3. Defaults, etc. Each Pledgor hereby represents and warrants that (i) such Pledgor is not in default in the payment of any portion of any mandatory capital con- tribution, if any, required to be made under any agreement to which such Pledgor is a party relat- ing to the Pledged Securities pledged by it, (ii) no Securities Collateral pledged by such Pledgor is subject to any defense, offset or counterclaim, nor have any of the foregoing been asserted or alleged against such Pledgor by any Person with respect thereto, and (iii) as of the date hereof, there are no certificates, instruments, documents or other writings (other than the Organizational Documents and certificates representing such Pledged Securities that are required to have been delivered to the Collateral Agent (or its agent or bailee (including any bailee pursuant to the In- tercreditor Agreement)) on the date hereof) which evidence any Pledged Securities of such Pledgor.
SECTION 5.4. Certain Agreements of Pledgors As Holders of Equity In- terests. In the case of each Pledgor which is a partner, shareholder or member, as the case may be, in a partnership, limited liability company or other entity, such Pledgor hereby con- sents to the extent required by the applicable Organizational Document to the pledge by each other Pledgor, pursuant to the terms hereof, of the Pledged Securities in such partnership, lim- ited liability company or other entity and, upon the occurrence and during the continuance of an Event of Default and subject to Section 11.15, to the transfer of such Pledged Securities to the Collateral Agent or its nominee and to the substitution of the Collateral Agent or its nomi- nee as a substituted partner, shareholder or member in such partnership, limited liability com- pany or other entity with all the rights, powers and duties of a general partner, limited partner, shareholder or member, as the case may be.
ARTICLE VI
CERTAIN PROVISIONS CONCERNING INTELLECTUAL PROPERTY COLLATERAL
SECTION 6.1. Grant of Intellectual Property License. For the purpose of en- abling the Collateral Agent, during the continuance of an Event of Default, to exercise its rights and remedies under Article IX hereof at such time as the Collateral Agent shall be lawfully enti- tled to exercise such rights and remedies, and for no other purpose, each Pledgor hereby grants to the Collateral Agent, to the extent assignable, an irrevocable, non-exclusive license to use, as-
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sign, license or sublicense any of the Intellectual Property Collateral now owned or hereafter ac- quired by such Pledgor, wherever the same may be located. Such license shall include access to all media in which any of the licensed items may be recorded or stored and to all computer pro- grams used for the compilation or printout hereof. With respect to Trademarks, such license shall be subject to the requirement that the quality of goods and services offered under the Trade- marks be substantially consistent with the quality of the goods and services offered thereunder by such Pledgor prior to the Collateral Agent’s exercise of rights and remedies.
SECTION 6.2. Protection of Collateral Agent’s Security. On a continuing ba- sis, each Pledgor shall, at its sole cost and reasonable expense, (i) promptly following its becom- ing aware thereof, notify the Collateral Agent of any adverse determination in any proceeding or the institution of any proceeding in any federal, state or local court or administrative body or in the United States Patent and Trademark Office or the United States Copyright Office, regarding any Material Intellectual Property Collateral, such Pledgor’s right to register such Material Intel- lectual Property Collateral or its right to keep and maintain such registration in full force and ef- fect that, in any such case, could reasonably be expected to result in a Material Adverse Effect,
(ii) maintain all Material Intellectual Property Collateral as presently used and operated con- sistent with its commercially reasonable business judgment, (iii) not permit to lapse or become abandoned any Material Intellectual Property Collateral consistent with its commercially reason- able business judgment, and not settle or compromise any pending or future litigation or admin- istrative proceeding with respect to any such Material Intellectual Property Collateral, in either case except as shall be consistent with commercially reasonable business judgment, (iv) upon such Pledgor obtaining knowledge thereof, promptly notify the Collateral Agent in writing of any event which may be reasonably expected to affect the value or utility of any Material Intel- lectual Property Collateral or the rights and remedies of the Collateral Agent in relation thereto including a levy or threat of levy or any legal process against any Material Intellectual Property Collateral and that, in any such case, could reasonably be expected to result in a Material Ad- verse Effect, (v) [reserved], (vi) keep adequate records respecting registered Intellectual Property Collateral and (vii) furnish to the Collateral Agent from time to time upon the Collateral Agent’s reasonable request therefor reasonably detailed statements and amended schedules further identi- fying and describing the registered Intellectual Property Collateral and such other materials evi- dencing or reports pertaining to any Intellectual Property Collateral as the Collateral Agent may from time to time reasonably request. Notwithstanding the foregoing, nothing herein shall pre- vent any Pledgor from settling, disposing of, or otherwise using any Intellectual Property Collat- eral as permitted under the ABL Credit Agreement.
SECTION 6.3. After-Acquired Property. If any Pledgor shall at any time prior to the Termination Date, (i) obtain any rights to any additional Intellectual Property Collat- eral or (ii) become entitled to the benefit of any additional Intellectual Property or any renewal or extension thereof, including any reissue, division, continuation, or continuation-in-part of any Intellectual Property Collateral, or any improvement on any Intellectual Property Collateral, or if any intent-to use trademark application is no longer subject to clause (vi) of the definition of Ex- cluded Assets, the provisions hereof shall automatically apply thereto and any such item enumer- ated in the preceding clause (i) or (ii) shall automatically constitute Intellectual Property Collat- eral as if such would have constituted Intellectual Property Collateral at the time of execution
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hereof and be subject to the Lien and security interest created by this Agreement without further action by any party. With respect to any federally registered or applied for Intellectual Property Collateral, Pledgor shall, together with the financial statements required under Sections 5.1(a) and (b) of the ABL Credit Agreement, provide to the Collateral Agent written notice of any of the foregoing and confirm the attachment of the Lien and security interest created by this Agree- ment to any rights described in clauses (i) and (ii) above by execution of an instrument in form reasonably acceptable to the Collateral Agent and the filing of any instruments or statements as shall be reasonably necessary or reasonably requested to create, preserve, protect or perfect the Collateral Agent’s security interest in such Intellectual Property Collateral in the United States, including prompt recordals with the United States Patent and Trademark Office and the United States Copyright Office, as applicable. Further, each Pledgor authorizes the Collateral Agent to modify this Agreement by amending Schedules 5(a), 5(b) and 5(c) to the Perfection Certificate to include any Intellectual Property Collateral of such Pledgor acquired or arising after the date hereof.
SECTION 6.4. Litigation. Unless there shall occur and be continuing any Event of Default, each Pledgor shall have the right to commence and prosecute in its own name, as the party in interest, for its own benefit and at the sole cost and expense of the Pledgors, such applications for protection of the Intellectual Property Collateral and suits, proceedings or other actions to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value or other damage as it deems necessary or appropriate consistent with its commercially rea- sonable business judgment to protect the Intellectual Property Collateral. Upon the occurrence and during the continuance of any Event of Default and subject to Section 11.15, the Collateral Agent shall have the right but shall in no way be obligated to file applications for protection of the Intellectual Property Collateral and/or bring suit in the name of any Pledgor, the Collateral Agent or the Secured Parties to enforce each Pledgor’s rights in the Intellectual Property Collat- eral and any Intellectual Property License. In the event of such suit, each Pledgor shall, at the reasonable request of the Collateral Agent, do any and all lawful acts and execute any and all documents reasonably requested by the Collateral Agent in aid of such enforcement and the Pledgors shall promptly reimburse and indemnify the Collateral Agent for all reasonable and documented costs and expenses incurred by the Collateral Agent in the exercise of its rights un- der this Section 6.4 in accordance with Section 10.6 of the ABL Credit Agreement. If the Collat- eral Agent shall elect not to bring suit to enforce the Intellectual Property Collateral and an Event of Default has occurred and is continuing, each Pledgor agrees, at the reasonable request of the Collateral Agent, to take all commercially reasonable actions necessary, whether by suit, pro- ceeding or other action, to prevent the infringement, counterfeiting, unfair competition, dilution, diminution in value of or other damage to any of the Intellectual Property Collateral by any per- son.
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CERTAIN PROVISIONS CONCERNING RECEIVABLES
SECTION 7.1. Maintenance of Records. Each Pledgor shall keep and main- tain at its own cost and reasonable expense materially complete records of each Receivable, in a manner consistent with prudent business practice, including records of payments received, cred- its granted thereon, merchandise returned and other documentation relating thereto. Each Pledgor shall, at such Pledgor’s sole cost and reasonable expense, upon the Collateral Agent’s demand made at any time after the occurrence and during the continuance of any Event of De- fault, deliver all tangible evidence of Receivables, including all documents evidencing Receiva- bles and any books and records relating thereto to the Collateral Agent or to its representatives (copies of which evidence and books and records may be retained by such Pledgor). Upon the occurrence and during the continuance of any Event of Default and subject to Section 11.15, the Collateral Agent may transfer a full and complete copy of any Pledgor’s books, records, credit information, reports, memoranda and all other writings relating to the Receivables to and for the use by any Person that has acquired or is contemplating acquisition of an interest in the Receiva- bles or the Collateral Agent’s security interest therein without the consent of any Pledgor.
SECTION 7.2. Legend. Each Pledgor shall legend, at the request of the Col- lateral Agent made at any time after the occurrence and during the continuance of any Event of Default and in form and manner reasonably satisfactory to the Collateral Agent, the Receivables and the other books, records and documents of such Pledgor evidencing or pertaining to the Re- ceivables with an appropriate reference to the fact that the Receivables have been assigned to the Collateral Agent for the benefit of the Secured Parties and that the Collateral Agent has a security interest therein.
SECTION 7.3. Modification of Terms, etc. No Pledgor shall rescind or cancel any indebtedness evidenced by any Receivable or modify any material term thereof or make any material adjustment with respect thereto except in the exercise of its reasonable business judgment, or extend or renew any such indebtedness except in the exercise of its business judgment or com- promise or settle any dispute, claim, suit or legal proceeding relating thereto or sell any Receivable or interest therein except in the exercise of its reasonable business judgment without the prior written consent of the Collateral Agent.
SECTION 7.4. Collection. Each Pledgor shall cause to be collected from the Account Debtor of each of the Receivables, as and when due in the ordinary course of business and consistent with its reasonable business judgment (including Receivables that are delinquent, such Receivables to be collected in accordance with generally accepted commercial collection procedures), any and all amounts owing under or on account of such Receivable, and apply forth- with upon receipt thereof all such amounts as are so collected to the outstanding balance of such Receivable, except that any Pledgor may, with respect to a Receivable, allow in the exercise of its reasonable business judgment (i) refunds and/or credits and (ii) extensions of time to pay amounts
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due in respect of Receivables and other modifications of payment terms or settlements in respect of Receivables.
ARTICLE VIII TRANSFERS
SECTION 8.1. Transfers of Collateral. No Pledgor shall sell, convey, assign or otherwise dispose of, or grant any option with respect to, any of the Collateral pledged by it hereunder except as expressly permitted by the ABL Credit Agreement.
ARTICLE IX REMEDIES
SECTION 9.1. Remedies. Upon the occurrence and during the continuance of any Event of Default and subject to Section 11.15, the Collateral Agent may, at the direction of the Required Lenders, from time to time exercise in respect of the Collateral, in addition to the other rights and remedies provided for herein or otherwise available to it, the following reme- dies:
(xxxix)Personally, or by agents or attorneys, immediately take possession of the Collateral or any part thereof, from any Pledgor or any other Person who then has possession of any part thereof with or without notice or process of law, and for that purpose may enter upon any Pledgor’s premises where any of the Collateral is located, remove such Collateral, remain present at such premises to receive copies of all communications and remittances relating to the Collateral and use in connection with such removal and possession any and all services, supplies, aids and other facilities of any Pledgor;
(xl)Demand, sue for, collect or receive any money or property at any time payable or receivable in respect of the Collateral including instructing the obligor or obligors on any agreement, instrument or other obligation constituting part of the Collateral to make any payment required by the terms of such agreement, instrument or other obligation directly to the Collateral Agent, and in connection with any of the foregoing, compromise, settle, extend the time for payment and make other modifications with respect thereto; provided, however, that if any such payments are made directly to any Pledgor, prior to receipt by any such obligor of such instruction, such Pledgor shall segregate all amounts received pursuant thereto in trust for the benefit of the Collateral Agent and shall promptly (but in no event later than three (3) Business Days after receipt thereof (or such later date as the Collateral Agent shall agree)) pay such amounts to the Collateral Agent;
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(xli)Sell, assign, grant a license to use or otherwise liquidate, or direct any Pledgor to sell, assign, grant a license to use or otherwise liquidate, any and all investments made in whole or in part with the Collateral or any part thereof, and take possession of the proceeds of any such sale, assignment, license or liquidation;
(xlii)Take possession of the Collateral or any part thereof, by directing any Pledgor in writing to deliver the same to the Collateral Agent at any place or places so desig- nated by the Collateral Agent, in which event such Pledgor shall at its own expense: (A) forth- with cause the same to be moved to the place or places designated by the Collateral Agent and therewith delivered to the Collateral Agent, (B) store and keep any Collateral so delivered to the Collateral Agent at such place or places pending further action by the Collateral Agent and
(C) while the Collateral shall be so stored and kept, provide such security and maintenance ser- vices as shall be necessary to protect the same and to preserve and maintain them in good condi- tion. Each Pledgor’s obligation to deliver the Collateral as contemplated in this Section 9.1(iv) is of the essence hereof. Upon application to a court of equity having jurisdiction, the Collateral Agent shall be entitled to a decree requiring specific performance by any Pledgor of such obliga- tion;
Retain and apply the Distributions to the Obligations as provided in Arti-
(xliv)Exercise any and all rights as beneficial and legal owner of the Collateral,
including perfecting assignment of and exercising any and all voting, consensual and other rights and powers with respect to any Collateral; and
(xlv)Exercise all the rights and remedies of a secured party on default under the UCC, and the Collateral Agent may also, without notice except as specified in Section 9.2 hereof, sell, assign or grant a license to use the Collateral or any part thereof in one or more par- cels at public or private sale, at any exchange, broker’s board or at any of the Collateral Agent’s offices or elsewhere, for cash, on credit or for future delivery, and at such price or prices and upon such other terms as the Collateral Agent may deem commercially reasonable. To the full- est extent permitted by applicable law, the Collateral Agent or any other Secured Party or any of their respective Affiliates may be the purchaser, licensee, assignee or recipient of the Collateral or any part thereof at any such sale and shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold, assigned or licensed at such sale, to use and apply any of the Obligations owed to such Person as a credit on account of the purchase price of the Collateral or any part thereof payable by such Person at such sale. Each purchaser, assignee, licensee or recipient at any such sale shall acquire the prop- erty sold, assigned or licensed absolutely free from any claim or right on the part of any Pledgor, and each Pledgor hereby waives, to the fullest extent permitted by law, all rights of redemption, stay and/or appraisal which it now has or may at any time in the future have under any rule of law or statute now existing or hereafter enacted. The Collateral Agent shall not be obligated to make any sale of the Collateral or any part thereof regardless of notice of sale having been given. The Collateral Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the
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time and place to which it was so adjourned. Each Pledgor hereby waives, to the fullest extent permitted by law, any claims against the Collateral Agent arising by reason of the fact that the price at which the Collateral or any part thereof may have been sold, assigned or licensed at such a private sale was less than the price which might have been obtained at a public sale, even if the Collateral Agent accepts the first offer received and does not offer such Collateral to more than one offeree.
SECTION 9.2. Notice of Sale. Each Pledgor acknowledges and agrees that, to the extent notice of sale or other disposition of the Collateral or any part thereof shall be re- quired by law, ten (10) days’ prior notice to such Pledgor of the time and place of any public sale or of the time after which any private sale or other intended disposition is to take place shall be commercially reasonable notification of such matters. No notification need be given to any Pledgor if it has signed, after the occurrence of an Event of Default, a statement renouncing or modifying any right to notification of sale or other intended disposition.
SECTION 9.3. Waiver of Notice and Claims. Each Pledgor hereby waives, to the fullest extent permitted by applicable law, notice or judicial hearing in connection with the Collateral Agent’s taking possession or the Collateral Agent’s disposition of the Collateral or any part thereof, including any and all prior notice and hearing for any prejudgment remedy or reme- dies and any such right which such Pledgor would otherwise have under law, and each Pledgor hereby further waives, to the fullest extent permitted by applicable law: (i) all damages occa- sioned by such taking of possession, (ii) all other requirements as to the time, place and terms of sale or other requirements with respect to the enforcement of the Collateral Agent’s rights here- under and (iii) all rights of redemption, appraisal, valuation, stay, extension or moratorium now or hereafter in force under any applicable law. The Collateral Agent shall not be liable for any incorrect or improper payment made pursuant to this Article IX in the absence of gross negli- gence or willful misconduct on the part of, or material breach of this agreement by, the Collateral Agent, in each case to the extent so determined by a court of competent jurisdiction in a final
non-appealable order. Any sale of, or the grant of options to purchase, or any other realization upon, any Collateral shall operate to divest all right, title, interest, claim and demand, either at law or in equity, of the applicable Pledgor therein and thereto, and shall be a perpetual bar both at law and in equity against such Pledgor and against any and all persons claiming or attempting to claim the Collateral so sold, optioned or realized upon, or any part thereof, from, through or under such Pledgor.
SECTION 9.4. Certain Sales of Collateral.
(a)Each Pledgor recognizes that, by reason of certain prohibitions contained in law, rules, regulations or orders of any Governmental Authority, the Collateral Agent may be compelled, with respect to any sale of all or any part of the Collateral, to limit purchasers to those who meet the requirements of such Governmental Authority. Each Pledgor acknowledges that any such sales may be at prices and on terms less favorable to the Collateral Agent than those obtainable through a public sale without such restrictions, and, notwithstanding such cir-
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cumstances, agrees that any such restricted sale shall be deemed to have been made in a commer- cially reasonable manner and that, except as may be required by applicable law, the Collateral Agent shall have no obligation to engage in public sales.
(b)Each Pledgor recognizes that, by reason of certain prohibitions contained in the Securities Act, and applicable state securities laws, the Collateral Agent may be com- pelled, with respect to any sale of all or any part of the Securities Collateral and Investment Property, to limit purchasers to persons who will agree, among other things, to acquire such Se- curities Collateral or Investment Property for their own account, for investment and not with a view to the distribution or resale thereof. Each Pledgor acknowledges that any such private sales may be at prices and on terms less favorable to the Collateral Agent than those obtainable through a public sale without such restrictions (including a public offering made pursuant to a registration statement under the Securities Act), and, notwithstanding such circumstances, agrees that any such private sale shall be deemed to have been made in a commercially reasonable man- ner and that the Collateral Agent shall have no obligation to engage in public sales and no obli- gation to delay the sale of any Securities Collateral or Investment Property for the period of time necessary to permit the issuer thereof to register it for a form of public sale requiring registration under the Securities Act or under applicable state securities laws, even if such issuer would agree to do so.
(c)Notwithstanding the foregoing, each Pledgor shall, upon the occurrence and during the continuance of any Event of Default, at the reasonable request of the Collateral Agent and subject to Section 11.15, for the benefit of the Collateral Agent, cause any registra- tion, qualification under or compliance with any Federal or state securities law or laws to be ef- fected with respect to all or any part of the Securities Collateral as soon as practicable and at the sole cost and reasonable expense of the Pledgors. Each Pledgor will use its commercially rea- sonable efforts to cause such registration to be effected (and be kept effective) and will use its commercially reasonable efforts to cause such qualification and compliance to be effected (and be kept effective) as may be so requested and as would permit or facilitate the sale and distribu- tion of such Securities Collateral including registration under the Securities Act (or any similar statute then in effect), appropriate qualifications under applicable blue sky or other state securi- ties laws and appropriate compliance with all other requirements of any Governmental Author- ity. Each Pledgor shall use its commercially reasonable efforts to cause the Collateral Agent to be kept advised in writing as to the progress of each such registration, qualification or compli- ance and as to the completion thereof, shall furnish to the Collateral Agent such number of pro- spectuses, offering circulars or other documents incident thereto as the Collateral Agent from time to time may request, and shall indemnify and shall cause the issuer of the Securities Collat- eral to indemnify the Collateral Agent and all others participating in the distribution of such Se- curities Collateral against all claims, losses, damages and liabilities caused by any untrue state- ment (or alleged untrue statement) of a material fact contained therein (or in any related registra- tion statement, notification or the like) or by any omission (or alleged omission) to state therein (or in any related registration statement, notification or the like) a material fact required to be stated therein or necessary to make the statements therein not misleading.
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(d)If the Collateral Agent determines to exercise its right to sell any or all of the Securities Collateral or Investment Property in accordance with the terms of this Agreement and the Intercreditor Agreement, upon written request, the applicable Pledgor shall from time to time furnish to the Collateral Agent all such information as the Collateral Agent reasonably re- quests in order to determine the number of securities included in the Securities Collateral or In- vestment Property which may be sold by the Collateral Agent as exempt transactions under the Securities Act and the rules of the SEC thereunder, as the same are from time to time in effect.
(e)Each Pledgor further agrees that a breach of any of the covenants con- tained in this Section 9.4 will cause irreparable injury to the Collateral Agent and the other Se- cured Parties, that the Collateral Agent and the other Secured Parties have no adequate remedy at law in respect of such breach and, as a consequence, that each and every covenant contained in this Section 9.4 shall be specifically enforceable against such Pledgor, and such Pledgor hereby waives and agrees not to assert any defenses against an action for specific performance of such covenants except for a defense that (i) no Event of Default has occurred and is continuing, (ii) the relevant Pledgor or Pledgors have been released from its or their obligations in accordance with the express terms of the ABL Credit Agreement and (iii) the Termination Date has oc- curred.
(f)The parties hereto agree that, at all times prior to the sale of any Collateral pursuant to an exercise of remedies hereunder, the applicable Pledgor (or the regarded owner of such Pledgor, if such Pledgor is a disregarded entity for U.S. federal tax purposes) shall be treated as the owner of the Collateral for U.S. federal and state tax purposes.
SECTION 9.5. No Waiver; Cumulative Remedies.
(a)No failure on the part of the Collateral Agent to exercise, no course of dealing with respect to, and no delay on the part of the Collateral Agent in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exer- cise of any such right, power, privilege or remedy hereunder preclude any other or further exer- cise thereof or the exercise of any other right, power, privilege or remedy; nor shall the Collateral Agent be required to look first to, enforce or exhaust any other security, collateral or guaranties. All rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies provided by law or otherwise available.
(b)If the Collateral Agent shall have instituted any proceeding to enforce any right, power, privilege or remedy under this Agreement or any other Credit Document by fore- closure, sale, entry or otherwise, and such proceeding shall have been discontinued or abandoned for any reason or shall have been determined adversely to the Collateral Agent, then and in every such case, the Pledgors and the Collateral Agent shall be restored to their respective former posi- tions and rights hereunder with respect to the Collateral, and all rights, remedies, privileges and powers of the Collateral Agent hereunder shall continue as if no such proceeding had been insti- tuted.
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SECTION 9.6. Certain Additional Actions Regarding Intellectual Property. If any Event of Default shall have occurred and be continuing and subject to Section 11.15, upon the written demand of the Collateral Agent, each Pledgor shall execute and deliver to the Collat- eral Agent an assignment or assignments of the registered Patents, Trademarks and/or Copy- rights and Goodwill and such other documents as are necessary or appropriate to carry out the intent and purposes hereof; provided that such assignments shall be reassigned to the applicable Pledgor within five (5) Business Days of such time as the Collateral Agent has received written notice from the applicable Pledgor that all Events of Default have been cured or waived in ac- cordance with the ABL Credit Agreement. If any Event of Default shall have occurred and be continuing, within five (5) Business Days of written notice thereafter from the Collateral Agent, each Pledgor shall use commercially reasonable efforts to make available to the Collateral Agent, to the extent reasonably within such Pledgor’s power and authority, such personnel in such Pledgor’s employ on the date of the Event of Default as the Collateral Agent may reasonably designate to permit such Pledgor to continue, directly or indirectly, to produce, advertise and sell the products and services sold by such Pledgor under the registered Patents, Trademarks and/or Copyrights, and such persons shall be available to perform their prior functions on the Collateral Agent’s behalf.
SECTION 9.7. Deposit Accounts. If any Event of Default shall have oc- curred and be continuing and upon the exercise of remedies pursuant to this Article IX, the Col- lateral Agent, subject to the Intercreditor Agreement, may apply the balance from any Deposit Account or instruct the bank at which any Deposit Account is maintained to pay the balance of any Deposit Account to or for the benefit of the Collateral Agent to be applied subject to the In- tercreditor Agreement to the Obligations in the order of priority set forth in Section 2.15(h) of the ABL Credit Agreement.
SECTION 9.8. Receivables.
(a)In addition to, and not in substitution for, any similar requirement in the ABL Credit Agreement, subject to the terms of the Intercreditor Agreement, if required by the Collateral Agent at any time during the continuance of an Event of Default and upon the exercise of remedies pursuant to this Article IX, any payment of Receivables, when collected by any Pledgor, shall be forthwith deposited by such Pledgor in the exact form received, duly indorsed by such Pledgor to the Collateral Agent, in an Approved Deposit Account or a Cash Collateral Account, subject to withdrawal by the Collateral Agent as provided in Section 9.9).
(b)Subject to the terms of the Intercreditor Agreement, at the Collateral Agent’s request, during the continuance of an Event of Default and upon the exercise of reme- dies pursuant to this Article IX, the Collateral Agent may notify, or require any Pledgor to notify, each Person maintaining a lockbox or similar arrangement to which Account Debtors under any Receivables have been directed to make payment to remit all amounts representing collections on checks and other payment items from time to time sent to or deposited in such lockbox or other arrangement directly to the Collateral Agent to be applied to the Obligations in the order of priority set forth in the ABL Credit Agreement.
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(c)Subject to the terms of the Intercreditor Agreement, at the Collateral Agent’s request, during the continuance of an Event of Default and upon the exercise of reme- dies pursuant to this Article IX, the Collateral Agent may enforce, at the expense of such Pledgor, collection of any such Receivables and to adjust, settle or compromise the amount or payment thereof, in the same manner and to the same extent as such Pledgor might have done.
(d)Subject to the terms of the Intercreditor Agreement, at the Collateral Agent’s request, during the continuance of an Event of Default, upon the exercise of remedies pursuant to this Article IX and subject to the Intercreditor Agreement, each Pledgor shall deliver to the Collateral Agent all available original and other documents evidencing, and relating to, the agreements and transactions that gave rise to the payments in respect of Receivables, including all available original orders, invoices and shipping receipts.
(e)Subject to the terms of the Intercreditor Agreement, the Collateral Agent may, upon notice, at any time during the continuance of an Event of Default and upon the exer- cise of remedies pursuant to this Article IX, limit or terminate the authority of a Pledgor to col- lect its amounts with respect to Receivables.
(f)Subject to the terms of the Intercreditor Agreement, the Collateral Agent in its own name or in the name of others may at any time during the continuance of an Event of Default communicate, in coordination with the applicable Pledgor, with Account Debtors to ver- ify with them to the Collateral Agent’s satisfaction the existence, amount and terms of any amounts due with respect to any Receivable.
(g)Upon the request of the Collateral Agent at any time during the continu- ance of an Event of Default and upon the exercise of remedies pursuant to this Article IX, each Pledgor shall notify Account Debtors that the Receivables have been collaterally assigned to the Collateral Agent and that payments in respect thereof shall be made directly to the Collateral Agent. In addition, the Collateral Agent may at any time during the continuance of an Event of Default (A) enforce such Pledgor’s rights against such Account Debtors and (B) notify, or re- quire any Pledgor to notify, any Account Debtor of the Collateral Agent’s security interest in the Receivables and any Supporting Obligation and use commercially reasonable efforts to keep in full force and effect any Supporting Obligation or Collateral Support relating to any Receivable.
(h)Anything herein to the contrary notwithstanding, each Pledgor shall re- main liable for payments in respect of Receivables to observe and perform all the conditions and obligations to be observed and performed by it thereunder, all in accordance with the terms of any agreement giving rise thereto. Neither the Collateral Agent nor any other Secured Party shall have any obligation or liability under any agreement giving rise to a payment in respect of a Re- ceivable by reason of or arising out of this Agreement or the receipt by the Collateral Agent nor any other Secured Party of any payment relating thereto, nor shall the Collateral Agent nor any other Secured Party be obligated in any manner to perform any obligation of any Pledgor under or pursuant to any agreement giving rise to a payment in respect of a Receivable, to make any payment, to make any inquiry as to the nature or the sufficiency of any payment received by it or as to the sufficiency of any performance by any party thereunder, to present or file any claim, to
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take any action to enforce any performance or to collect the payment of any amounts that may have been assigned to it or to which it may be entitled at any time or times.
SECTION 9.9. Cash Proceeds. If an Event of Default has occurred and is con- tinuing and upon the request of the Collateral Agent and the exercise of remedies pursuant to this Article IX, in addition to the rights of the Collateral Agent specified in this Agreement or any other Credit Document with respect to payments of Receivables, all proceeds of any Collateral received by any Pledgor consisting of cash, checks and other non-cash items (collectively, “Cash Proceeds”) shall be held by such Pledgor in trust for the Collateral Agent, and deposited in the Cash Collateral Account or a Deposit Account subject to an effective Deposit Account Control Agreement or otherwise be segregated from other funds of such Pledgor, and shall, forthwith upon receipt by such Pledgor, unless otherwise provided pursuant to the Intercreditor Agreement, be turned over to the Collateral Agent in the exact form received by such Pledgor (duly indorsed by such Pledgor to the Collateral Agent, if required) and held by the Collateral Agent in the Col- lateral Account. Subject to the terms of the Intercreditor Agreement, any Cash Proceeds received by the Collateral Agent (whether from a Pledgor or otherwise) shall be applied by the Collateral Agent in the manner prescribed by the ABL Credit Agreement.
ARTICLE X APPLICATION OF PROCEEDS
SECTION 10.1. Application of Proceeds. The proceeds received by the Collat- eral Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, in accordance with Section 2.15 of the ABL Credit Agreement and with the Intercreditor Agree- ment.
ARTICLE XI MISCELLANEOUS
SECTION 11.1. Concerning Collateral Agent.
(a)The Collateral Agent has been appointed as Collateral Agent pursuant to the ABL Credit Agreement. The actions of the Collateral Agent hereunder are subject to the pro- visions of the ABL Credit Agreement. It is expressly understood and agreed by the parties to this Agreement that any authority conferred upon the Collateral Agent hereunder is subject to the terms of the delegation of authority made by the Secured Parties to the Collateral Agent pursuant to the ABL Credit Agreement and any other Credit Documents, and that the Collateral Agent has
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agreed to act (and any successor Collateral Agent shall act) as such hereunder only on the ex- press conditions contained in the ABL Credit Agreement. The Collateral Agent is entering into this Agreement not in its individual capacity but solely in its capacity as Collateral Agent under the ABL Credit Agreement. All rights, protections, indemnities and benefits granted to the Col- lateral Agent in the ABL Credit Agreement or any other Credit Documents are hereby incorpo- rated as if fully set forth in this Agreement, and each reference in such Sections of the ABL Credit Agreement to the “Agreement”, “herein”, “hereto”, “hereby”, “hereunder” and like terms shall be deemed to refer to this Agreement. The permissive authorizations, entitlements, powers and rights granted to the Collateral Agent herein shall not be construed as duties. Any exercise of discretion on behalf of the Collateral Agent shall be exercised in accordance with the terms of the ABL Credit Agreement. None of the provisions in this Agreement or any other Credit Docu- ment shall require the Collateral Agent to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it. The Collat- eral Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or in that the Col- lateral Agent is required to exercise as directed in writing by the written instruction from the Re- quired Lenders; provided, the Collateral Agent shall be entitled to refrain from any act or the tak- ing of any action hereunder or any other Credit Document or from the exercise of any power or authority vested in it hereunder or thereunder unless and until the Collateral Agent shall have re- ceived instructions from the Required Lenders; and if the Collateral Agent deems necessary, sat- isfactory indemnity, and shall not be liable for any such delay in acting. The Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, is con- trary to applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any bankruptcy or insolvency law. The Collateral Agent shall have the right hereunder to make demands, to give notices, to exercise or refrain from exercising any rights, and to take or refrain from taking action (including the release or substitution of the Col- lateral), in accordance with this Agreement and the ABL Credit Agreement. The Collateral Agent may employ agents and attorneys-in-fact in connection herewith and shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith. Each Secured Party, by its acceptance of the benefits hereof, agrees that it shall have no right in- dividually to realize upon any of the Collateral hereunder, it being understood and agreed by such Secured Party that all rights and remedies hereunder may be exercised solely by the Collat- eral Agent for the benefit of the Secured Parties in accordance with the terms of this Agreement. The Collateral Agent may resign and a successor Collateral Agent may be appointed in the man- ner provided in the ABL Credit Agreement. Upon the acceptance of any appointment as the Col- lateral Agent by a successor Collateral Agent, that successor Collateral Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent under this Agreement, and the retiring Collateral Agent shall thereupon be dis- charged from its duties and obligations under this Agreement. After any retiring Collateral Agent’s resignation, the provisions hereof shall inure to its benefit as to any actions taken or omitted to be taken by it under this Agreement while it was the Collateral Agent.
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(b)The Collateral Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral in its possession if such Collateral is accorded treatment substantially equivalent to that which the Collateral Agent, in its individual capacity, accords its own property consisting of similar instruments or interests, it being understood that neither the Collateral Agent nor any of the Secured Parties shall have responsibility for (i) ascer- taining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relating to any Securities Collateral, whether or not the Collateral Agent or any other Se- cured Party has or is deemed to have knowledge of such matters or (ii) taking any necessary steps to preserve rights against any Person with respect to any Collateral.
(c)Absent gross negligence or willful misconduct, the Collateral Agent shall be entitled to rely upon any written notice, statement, certificate, order or other document or any telephone message believed by it to be genuine and correct and to have been signed, sent or made by the proper Person, and, with respect to all matters pertaining to this Agreement and its duties hereunder, upon advice of counsel reasonably selected by it in good faith.
(d)If any item of Collateral also constitutes collateral granted to the Collateral Agent under any other deed of trust, mortgage, security agreement, pledge or instrument of any type, in the event of any conflict between the provisions hereof and the provisions of such other deed of trust, mortgage, security agreement, pledge or instrument of any type in respect of such collateral, the Collateral Agent, in its sole discretion, shall select which provision or provisions shall control.
(e)The Collateral Agent may rely on advice of counsel as to whether any or all UCC financing statements of the Pledgors need to be amended as a result of any of the changes described in Section 3.7 hereof. If any Pledgor fails to provide information to the Col- lateral Agent about such changes on a timely basis, the Collateral Agent shall not be liable or re- sponsible to any party for any failure to maintain a perfected security interest in such Pledgor’s property constituting Collateral, for which the Collateral Agent needed to have information relat- ing to such changes. The Collateral Agent shall have no duty to inquire about such changes if any Pledgor does not inform the Collateral Agent of such changes, the parties acknowledging and agreeing that it would not be feasible or practical for the Collateral Agent to search for infor- mation on such changes if such information is not provided by any Pledgor.
SECTION 11.2. Collateral Agent May Perform; Collateral Agent Appointed Attorney-in-Fact. If any Pledgor shall fail to perform any covenants contained in this Agree- ment (including such Pledgor’s covenants, if any, to (i) pay the premiums in respect of all re- quired insurance policies hereunder, (ii) pay and discharge any taxes, assessments and special assessments, levies, fees and governmental charges imposed upon or assessed against, and landlords’, carriers’, mechanics’, workmen’s, repairmen’s, laborers’, materialmen’s, suppliers’ and warehousemen’s Liens and other claims arising by operation of law against, all or any por- tion of the Collateral, (iii) make repairs, (iv) discharge Liens or (v) pay or perform any obliga- tions of such Pledgor under any Collateral) or if any Pledgor shall breach any representation or warranty contained herein, the Collateral Agent may (but shall not be obligated to) do the same
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or cause it to be done or remedy any such breach, and may expend funds for such purpose; pro- vided, however, that the Collateral Agent shall in no event be bound to inquire into the validity of any tax, Lien, imposition or other obligation which such Pledgor fails to pay or perform as and when required hereby and which such Pledgor does not contest in accordance with the pro- visions of the ABL Credit Agreement. Any and all amounts so expended by the Collateral Agent shall be paid by the Pledgors in accordance with the provisions of Section 10.2 of the ABL Credit Agreement. Neither the provisions of this Section 11.2 nor any action taken by the Collateral Agent pursuant to the provisions of this Section 11.2 shall prevent any such failure to observe any covenant contained in this Agreement nor any breach of representation or war- ranty from constituting an Event of Default. Each Pledgor hereby appoints the Collateral Agent its attorney-in-fact, with full power and authority in the place and stead of such Pledgor and in the name of such Pledgor, or otherwise, from time to time after the occurrence and dur- ing the continuance of an Event of Default in the Collateral Agent’s reasonable discretion to take any action and to execute any instrument consistent with the terms of the ABL Credit Agreement, this Agreement and the other Security Documents and the Intercreditor Agreement which the Collateral Agent may deem reasonably necessary to accomplish the purposes hereof (but the Collateral Agent shall not be obligated to and shall have no liability to such Pledgor or any third party for failure to so do or take action). The foregoing grant of authority is a power of attorney coupled with an interest and such appointment shall be irrevocable for the term hereof. Each Pledgor hereby ratifies all that such attorney shall lawfully do or cause to be done by virtue hereof.
SECTION 11.3. Continuing Security Interest; Assignment. This Agreement shall create a continuing security interest in the Collateral and shall (i) be binding upon the Pledgors, their respective successors and assigns and (ii) inure, together with the rights and reme- dies of the Collateral Agent hereunder, to the benefit of the Collateral Agent and the other Se- cured Parties and each of their respective successors, transferees and assigns. No other persons (including any other creditor of any Pledgor) shall have any interest herein or any right or benefit with respect hereto. Without limiting the generality of the foregoing clause (ii), any Secured Party may assign or otherwise transfer any indebtedness held by it secured by this Agreement to any other Person in conformity with Section 10.6 of the ABL Credit Agreement, and such other person shall thereupon become vested with all the benefits in respect thereof granted to such Se- cured Party, herein or otherwise, subject however, to the provisions of the ABL Credit Agree- ment. Each of the Pledgors agrees that its obligations hereunder and the security interest created hereunder shall continue to be effective or be reinstated, as applicable, if at any time payment, or any part thereof, of all or any part of the Obligations is rescinded or must otherwise be restored by a Secured Party upon the bankruptcy or reorganization of any Pledgor or otherwise.
SECTION 11.4. Termination; Release. Upon the termination in full of the Re- volving Commitments and payment and satisfaction in full in cash of all Loans, all Reimburse- ment Obligations and all other Obligations (other than Contingent Obligations) that the Adminis- trative Agent has been notified in writing are then due and payable (and, in respect of contingent Letter of Credit Obligations, with respect to which cash collateral has been deposited or a back- up letter of credit has been issued, in either case in the appropriate currency and on terms satis- factory to the Administrative Agent and the applicable Issuing Banks) (the “Termination Date”),
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this Agreement shall terminate. Upon termination of this Agreement the Collateral shall be re- leased from the Lien of this Agreement. Upon such release or any release of Collateral or any part thereof in accordance with the provisions of the ABL Credit Agreement, the Collateral Agent shall, upon the request and at the sole cost and reasonable expense of the Pledgors, assign, transfer and deliver to the Pledgors, against receipt and without recourse to or warranty by the Collateral Agent except as to the fact that the Collateral Agent has not encumbered the released assets, such of the Collateral or any part thereof to be released (in the case of a release) as may be in possession of the Collateral Agent and as shall not have been sold or otherwise applied pur- suant to the terms hereof, and, with respect to any other Collateral, proper documents and instru- ments (including UCC-3 termination statements or releases) acknowledging the termination hereof or the release of such Collateral, as the case may be.
SECTION 11.5. Modification in Writing. No amendment, modification, sup- plement, termination or waiver of or to any provision hereof, nor consent to any departure by any Pledgor therefrom, shall be effective unless the same shall be made in accordance with the terms of the ABL Credit Agreement and unless in writing and signed by the Collateral Agent and, other than with respect to a consent to any departure by any Pledgor from the terms hereof, the Parent Borrower. Any amendment, modification or supplement of or to any provision hereof, any waiver of any provision hereof and any consent to any departure by any Pledgor from the terms of any provision hereof in each case shall be effective only in the specific instance and for the specific purpose for which made or given. Except where notice is specifically required by this Agreement or any other document evidencing the Obligations, no notice to or demand on any Pledgor in any case shall entitle any Pledgor to any other or further notice or demand in sim- ilar or other circumstances.
SECTION 11.6. Notices. Unless otherwise provided herein or in the ABL Credit Agreement, any notice or other communication herein required or permitted to be given shall be given in the manner and become effective as set forth in the ABL Credit Agreement, as to any Pledgor, addressed to it at the address of the Parent Borrower set forth in the ABL Credit Agreement and as to the Collateral Agent, addressed to it at the address set forth in the ABL Credit Agreement, or in each case at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 11.6.
SECTION 11.7. Governing Law, Consent to Jurisdiction and Service of Pro- cess; Waiver of Jury Trial. Sections 10.14, 10.15 and 10.16 of the ABL Credit Agreement are incorporated herein, mutatis mutandis, as if a part hereof.
SECTION 11.8. Severability of Provisions. Any provision hereof which is in- valid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without invalidating the remaining provisions hereof or affecting the validity, legality or enforceability of such provision in any other jurisdiction.
SECTION 11.9. Execution in Counterparts. This Agreement and any amend- ments, waivers, consents or supplements hereto may be executed in any number of counterparts
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and by different parties hereto in separate counterparts, each of which when so executed and de- livered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Agree- ment by facsimile or other electronic transmission (e.g. a “pdf” document) shall be effective as delivery of a manually executed counterpart of this Agreement.
SECTION 11.10. Business Days. If any time period or any date provided in this Agreement ends or falls on a day other than a Business Day, then such time period shall be deemed to end and such date shall be deemed to fall on the next succeeding Business Day, and performance herein may be made on such Business Day, with the same force and effect as if made on such other day.
SECTION 11.11. No Credit for Payment of Taxes or Imposition. No Pledgor shall be entitled to any credit against the principal, premium, if any, or interest payable under the ABL Credit Agreement, and such Pledgor shall not be entitled to any credit against any other sums which may become payable under the terms thereof or hereof, by reason of the payment of any Tax on the Collateral or any part thereof (or on any income or proceeds with respect thereto).
SECTION 11.12. No Claims Against Collateral Agent. Nothing contained in this Agreement shall constitute any consent or request by the Collateral Agent, express or im- plied, for the performance of any labor or services or the furnishing of any materials or other property in respect of the Collateral or any part thereof, nor as giving any Pledgor any right, power or authority to contract for or permit the performance of any labor or services or the fur- nishing of any materials or other property in such fashion as would permit the making of any claim against the Collateral Agent in respect thereof or any claim that any Lien based on the per- formance of such labor or services or the furnishing of any such materials or other property is prior to the Lien hereof.
SECTION 11.13. No Release. Nothing set forth in this Agreement or any other Credit Document, nor the exercise by the Collateral Agent of any of the rights or remedies here- under, shall relieve any Pledgor from the performance of any term, covenant, condition or agree- ment on such Pledgor’s part to be performed or observed under or in respect of any of the Collat- eral or from any liability to any Person under or in respect of any of the Collateral or shall im- pose any obligation on the Collateral Agent or any other Secured Party to perform or observe any such term, covenant, condition or agreement on such Pledgor’s part to be so performed or ob- served or shall impose any liability on the Collateral Agent or any other Secured Party for any act or omission on the part of such Pledgor relating thereto or for any breach of any representa- tion or warranty on the part of such Pledgor contained in this Agreement, the ABL Credit Agree- ment or the other Credit Documents, or under or in respect of the Collateral or made in connec- tion herewith or therewith. Anything herein to the contrary notwithstanding, neither the Collat- eral Agent nor any other Secured Party shall have any obligation or liability under any contracts, agreements and other documents included in the Collateral by reason of this Agreement, nor shall the Collateral Agent or any other Secured Party be obligated to perform any of the obliga- tions or duties of any Pledgor thereunder or to take any action to collect or enforce any such con- tract, agreement or other document included in the Collateral hereunder. The obligations of each
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Pledgor contained in this Section 11.13 shall survive the termination hereof and the discharge of such Pledgor’s other obligations under this Agreement, the ABL Credit Agreement and the other Credit Documents.
SECTION 11.14. Obligations Absolute. All obligations of each Pledgor hereun- der shall be absolute and unconditional irrespective of:
(xlvi)any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or the like of any other Pledgor;
(xlvii)any lack of validity or enforceability of the ABL Credit Agreement or any other Credit Document, or any other agreement or instrument relating thereto;
(xlviii)any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any con- sent to any departure from the ABL Credit Agreement or any other Credit Document or any other agreement or instrument relating thereto;
(xlix)any pledge, exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to any departure from any guarantee, for all or any of the Obligations;
(l)any exercise, non-exercise or waiver of any right, remedy, power or privi- lege under or in respect of this Agreement, the ABL Credit Agreement or any other Credit Document except as specifically set forth in a waiver granted pursuant to the pro- visions of Section 11.5 hereof; or
(li)any other circumstances which might otherwise constitute a defense avail- able to, or a discharge of, any Pledgor (other than a defense of payment and the occur- rence of the Termination Date);
provided that, for the avoidance of doubt, this Agreement shall terminate upon the occurrence of the Termination Date.
SECTION 11.15. Intercreditor Agreement Governs.
(a)This Agreement and each other Credit Document is subject to the terms and conditions set forth in the Intercreditor Agreement in all respects and, in the event of any conflict between the terms of the Intercreditor Agreement, this Agreement and the other Credit Documents, the terms of the Intercreditor Agreement shall govern. Notwithstanding anything herein to the contrary, the Lien and security interest granted to the Collateral Agent pursuant to any Credit Document and the exercise of any right or remedy in respect of the Collateral by the Collateral Agent hereunder or under any other Credit Document are subject to the provisions of the Intercreditor Agreement. Without limiting the generality of the foregoing, and notwithstand- ing anything herein to the contrary, all rights and remedies with respect to the Collateral of the Collateral Agent (and the Secured Parties) shall be subject to the terms of the Intercreditor
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Agreement, and no Pledgor shall be required hereunder or under any Credit Document to take any action with respect to the Collateral that is inconsistent with such Pledgor’s obligations un- der the Intercreditor Agreement. The Collateral Agent may not require any Pledgor to take any action with respect to the creation, perfection or priority of its security interest, whether pursuant to the express terms hereof or of any other Credit Document or pursuant to the further assurance provisions hereof or any other Credit Document, to the extent that such action would be violative of the Intercreditor Agreement or such Pledgor’s obligations under the Intercreditor Agreement.
(b)Notwithstanding anything to the contrary contained in this Agreement or any other Credit Document, so long as the Intercreditor Agreement is outstanding, to the extent any Pledgor is required hereunder (or by any other Credit Documents) to deliver Collateral to, or the possession or control by, the Collateral Agent and is unable to do so as a result of having pre- viously delivered such Collateral to the Controlling Senior Representative (as defined in the In- tercreditor Agreement) in accordance with the terms of the Intercreditor Agreement, such Pledgor’s obligations hereunder with respect to such delivery shall be deemed complied with and satisfied by the delivery to the Controlling Senior Representative (as defined in the Intercreditor Agreement), acting as a gratuitous bailee and/or gratuitous agent for the benefit of the Secured Parties.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, each Pledgor and the Collateral Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.
DIEBOLD NIXDORF, INCORPORATED,
as Pledgor
By: Name:
Title:
Diebold Global Finance Corporation, as Pledgor
By: Name:
Title:
Diebold Holding Company, LLC, as Pledgor
By: Name:
Title:
Diebold Nixdorf Technology Finance, LLC, as Pledgor
By: Name:
Title:
Diebold Self Service Systems, as Pledgor
By: Name:
Title:
| | |
[Signature Page to Security Agreement] |
Diebold SST Holding Company, LLC, as Pledgor
By: Name:
Title:
Griffin Technology Incorporated, as Pledgor
By: Name:
Title:
| | |
[Signature Page to Security Agreement] |
JPMorgan Chase Bank, N.A, as Collateral Agent
By: Name:
Title:
| | |
[Signature Page to Security Agreement] |
EXHIBIT 1
[Form of]
ISSUER’S ACKNOWLEDGMENT
The undersigned hereby (i) acknowledges receipt of the Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Se- curity Agreement;” capitalized terms used but not otherwise defined herein shall have the mean- ings assigned to such terms in the Security Agreement), dated as of December 29, 2022, made by Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Subsidiary Pledgors party thereto and JPMorgan Chase Bank, N.A (the “Collateral Agent”), (ii) agrees promptly to note on its books the security interests granted to the Collateral Agent and confirmed under the Security Agreement, (iii) agrees that it will comply with instructions of the Collateral Agent with respect to the applicable Securities Collateral (including all Equity Interests of the undersigned) without further consent by the applicable Pledgor, (iv) agrees to notify the Collateral Agent upon obtaining knowledge of any interest in favor of any person in the applicable Securities Collateral that is adverse to the interest of the Collateral Agent therein and (v) waives any right or require- ment at any time hereafter to receive a copy of the Security Agreement in connection with the registration of any Securities Collateral thereunder in the name of the Collateral Agent or its nominee or the exercise of voting rights by the Collateral Agent or its nominee.
[ ]
By: Name:
Title:
EXHIBIT 2
[Form of]
SECURITIES PLEDGE AMENDMENT
This Securities Pledge Amendment, dated as of [ ], is delivered pursu- ant to Section 5.1 of the Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), dated as of December 29, 2022, made by Diebold Nixdorf, Incorporated, an Ohio corporation (the “Company”), the Subsidiary Pledgors party thereto and JPMorgan Chase Bank,
N.A (the “Collateral Agent”). The undersigned hereby agrees that this Securities Pledge Amend- ment may be attached to the Security Agreement and that the Pledged Securities and/or Inter- company Notes listed on this Securities Pledge Amendment shall be deemed to be and shall be- come part of the Collateral and shall secure all Obligations.
PLEDGED SECURITIES
CLASS OF STOCK
OR INTERESTS
CERTIFICATE NO(S).
NUMBER OF SHARES
OR INTERESTS
PERCENTAGE OF ALL ISSUED CAPITAL OR OTHER EQUITY
INTERESTS OF ISSUER
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INTERCOMPANY NOTES
[ ],
as Pledgor
By: Name:
Title:
AGREED TO AND ACCEPTED:
JPMorgan Chase Bank, N.A, as Collateral Agent
By: Name:
Title:
EXHIBIT 3
[Form of] JOINDER AGREEMENT
[Name of New Pledgor] [Address of New Pledgor]
[Date]
Ladies and Gentlemen:
Reference is made to the Security Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement;” capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms in the Security Agreement), dated as of December 29, 2022, made by Diebold Nixdorf, Incorpo- rated, an Ohio corporation (the “Company”), the Subsidiary Pledgors party thereto and JPMor- gan Chase Bank, N.A (the “Collateral Agent”).
This Joinder Agreement supplements the Security Agreement and is delivered by the undersigned, [ ] (the “New Pledgor”), pursuant to Section 3.5 of the Security Agreement. The New Pledgor hereby agrees to be bound as a Subsidiary Pledgor and as a Pledgor party to the Security Agreement by all of the terms, covenants and conditions set forth in the Security Agreement to the same extent that it would have been bound if it had been a signa- tory to the Security Agreement on the date of the Security Agreement. Without limiting the gen- erality of the foregoing, the New Pledgor hereby grants and pledges to the Collateral Agent, as collateral security for the full, prompt and complete payment and performance when due (whether at stated maturity, by acceleration or otherwise) of the Obligations, a Lien on and secu- rity interest in, all of its right, title and interest in, to and under the Collateral and expressly as- sumes all obligations and liabilities of a Subsidiary Pledgor and Pledgor thereunder. The New Pledgor hereby makes each of the representations and warranties and agrees to each of the cove-
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nants applicable to the Pledgors contained in the Security Agreement and, to the extent applica- ble to it, agrees to make the representations and warranties in Section 4 of the ABL Credit Agreement.
Annexed hereto are supplements to each of the schedules to the Perfection Certifi- cate and the ABL Credit Agreement, as applicable, with respect to the New Pledgor. Such sup- plements shall be deemed to be part of the Perfection Certificate or the ABL Credit Agreement, as applicable.
This Joinder Agreement and any amendments, waivers, consents or supplements hereto may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counterparts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Joinder Agreement by facsimile or other elec- tronic transmission (e.g. a “pdf” document) shall be effective as delivery of a manually executed counterpart of this Joinder Agreement.
THIS JOINDER AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the New Pledgor has caused this Joinder Agreement to be executed and delivered by its duly authorized officer as of the date first above written.
[NEW PLEDGOR]
By: Name:
Title:
AGREED TO AND ACCEPTED:
JPMorgan Chase Bank, N.A, as Collateral Agent
By: Name:
Title:
[Schedules to be attached]
EXHIBIT 4
[Form of] Copyright Security Agreement
Copyright Security Agreement, dated as of [ ], by [ ] and [ ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of JPMorgan Chase Bank, N.A (the “Collateral Agent”).
W i t n e s s e t h:
WHEREAS, the Pledgors are party to a Security Agreement [of even date herewith] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors are re- quired to execute and deliver this Copyright Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Collateral Agent, for the benefit of the Secured Parties, to enter into the ABL Credit Agreement, the Pledg- ors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agree- ment.
SECTION 2. Grant of Security Interest in Copyright Collateral. As collateral security for the payment and performance in full of all the Obligations, each Pledgor hereby pledges and grants to the Collateral Agent for the benefit of the Secured Parties, a lien on and se- curity interest in all of its right, title and interest in, to and under all the following Collateral of such Pledgor:
(a)Copyrights of such Pledgor listed on Schedule I attached hereto; and
(b)all Proceeds of any and all of the foregoing (other than Excluded Assets). SECTION 3. Security Agreement. The security interest granted pursuant to this
Copyright Security Agreement is granted in conjunction with the security interest granted to the
Collateral Agent pursuant to the Security Agreement and the Pledgors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Copyrights made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Copyright Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
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SECTION 4. Termination. Upon the occurrence of the Termination Date, the Collateral Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Copyrights (and Proceeds thereof) under this Copyright Security Agreement.
SECTION 5. Counterparts. This Copyright Security Agreement may be exe- cuted in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counter- parts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Copyright Security Agreement by facsimile or other electronic trans- mission (e.g. a “pdf” document) shall be effective as delivery of a manually executed counterpart of this Copyright Security Agreement.
SECTION 6. Governing Law. This Copyright Security Agreement and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, the law of the State of New York without regard to conflict of law principles thereof.
SECTION 7. Collateral Agent. The Collateral Agent is entering into this Copy- right Security Agreement not in its individual capacity but solely in its capacity as Collateral Agent under the Credit Agreement. All rights, protections, indemnities and benefits granted to the Collateral Agent in the Credit Agreement or any other Credit Documents are hereby incorpo- rated as if fully set forth in this Copyright Security Agreement
[signature page follows]
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IN WITNESS WHEREOF, each Pledgor has caused this Copyright Security Agree- ment to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours, [PLEDGORS]
By: Name:
Title:
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
By: Name:
Title:
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SCHEDULE I
to
COPYRIGHT SECURITY AGREEMENT
COPYRIGHT REGISTRATIONS AND COPYRIGHT APPLICATIONS
Copyright Registrations:
| | | | | | | | |
OWNER | REGISTRATION NUMBER |
TITLE |
| | |
Copyright Applications:
EXHIBIT 5
[Form of]
Patent Security Agreement
Patent Security Agreement, dated as of [ ], by [ ] and
[ ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of JPMorgan Chase Bank, N.A (the “Collateral Agent”).
W i t n e s s e t h:
WHEREAS, the Pledgors are party to a Security Agreement [of even date herewith] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors are re- quired to execute and deliver this Patent Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Collateral Agent, for the benefit of the Secured Parties, to enter into the ABL Credit Agreement, the Pledg- ors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agree- ment.
SECTION 2. Grant of Security Interest in Patent Collateral. As collateral secu- rity for the payment and performance in full of all the Obligations, each Pledgor hereby pledges and grants to the Collateral Agent for the benefit of the Secured Parties, a lien on and security interest in all of its right, title and interest in, to and under all the following Collateral of such Pledgor:
(a)Patents of such Pledgor listed on Schedule I attached hereto; and
(b)all Proceeds of any and all of the foregoing (other than Excluded Assets). SECTION 3. Security Agreement. The security interest granted pursuant to this
Patent Security Agreement is granted in conjunction with the security interest granted to the Col-
lateral Agent pursuant to the Security Agreement and the Pledgors hereby acknowledge and af- firm that the rights and remedies of the Collateral Agent with respect to the security interest in the Patents made and granted hereby are more fully set forth in the Security Agreement, the terms and provisions of which are incorporated by reference herein as if fully set forth herein. In
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the event that any provision of this Patent Security Agreement is deemed to conflict with the Se- curity Agreement, the provisions of the Security Agreement shall control.
SECTION 4. Termination. Upon the occurrence of the Termination Date, the Collateral Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Patents (and Proceeds thereof) under this Patent Security Agreement.
SECTION 5. Counterparts. This Patent Security Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counter- parts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Patent Security Agreement by facsimile or other electronic transmis- sion (e.g. a “pdf” document) shall be effective as delivery of a manually executed counterpart of this Patent Security Agreement.
SECTION 6. Governing Law. This Patent Security Agreement and the rights and obligations of the parties hereunder shall be construed and enforced in accordance with, the law of the State of New York without regard to conflict of law principles thereof.
SECTION 7. Collateral Agent. The Collateral Agent is entering into this Patent Security Agreement not in its individual capacity but solely in its capacity as Collateral Agent under the Credit Agreement. All rights, protections, indemnities and benefits granted to the Col- lateral Agent in the Credit Agreement or any other Credit Documents are hereby incorporated as if fully set forth in this Patent Security Agreement.
[signature page follows]
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IN WITNESS WHEREOF, each Pledgor has caused this Patent Security Agreement to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours, [PLEDGORS]
By: Name:
Title:
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
By: Name:
Title:
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SCHEDULE I
to
PATENT SECURITY AGREEMENT
PATENT REGISTRATIONS AND PATENT APPLICATIONS
Patent Registrations:
Patent Applications:
| | | | | | | | |
OWNER | APPLICATION NUMBER |
Title |
| | |
EXHIBIT 6
[Form of] Trademark Security Agreement
Trademark Security Agreement, dated as of [ ], by [ ] and [ ] (individually, a “Pledgor”, and, collectively, the “Pledgors”), in favor of JPMorgan Chase Bank, N.A (the “Collateral Agent”).
W i t n e s s e t h:
WHEREAS, the Pledgors are party to a Security Agreement [of even date herewith] (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”) in favor of the Collateral Agent pursuant to which the Pledgors are re- quired to execute and deliver this Trademark Security Agreement;
NOW, THEREFORE, in consideration of the premises and to induce the Collateral Agent, for the benefit of the Secured Parties, to enter into the ABL Credit Agreement, the Pledg- ors hereby agree with the Collateral Agent as follows:
SECTION 1. Defined Terms. Unless otherwise defined herein, terms defined in the Security Agreement and used herein have the meaning given to them in the Security Agree- ment.
SECTION 2. Grant of Security Interest in Trademark Collateral. Each Pledgor hereby pledges and grants to the Collateral Agent for the benefit of the Secured Parties a lien on and security interest in and to all of its right, title and interest in, to and under all the following Collateral of such Pledgor:
(a)Trademarks of such Pledgor listed on Schedule I attached hereto;
(b)all Goodwill associated with such Trademarks; and
(c)all Proceeds of any and all of the foregoing (other than Excluded Assets). SECTION 3. Security Agreement. The security interest granted pursuant to this
Trademark Security Agreement is granted in conjunction with the security interest granted to the
Collateral Agent pursuant to the Security Agreement and the Pledgors hereby acknowledge and affirm that the rights and remedies of the Collateral Agent with respect to the security interest in the Trademarks made and granted hereby are more fully set forth in the Security Agreement, the
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terms and provisions of which are incorporated by reference herein as if fully set forth herein. In the event that any provision of this Trademark Security Agreement is deemed to conflict with the Security Agreement, the provisions of the Security Agreement shall control.
SECTION 4. Termination. Upon the occurrence of the Termination Date, the Collateral Agent shall execute, acknowledge, and deliver to the Pledgors an instrument in writing in recordable form releasing the collateral pledge, grant, assignment, lien and security interest in the Trademarks (and Proceeds thereof) under this Trademark Security Agreement.
SECTION 5. Counterparts. This Trademark Security Agreement may be exe- cuted in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original, but all such counter- parts together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page of this Trademark Security Agreement by facsimile or other electronic trans- mission (e.g. a “pdf” document) shall be effective as delivery of a manually executed counterpart of this Trademark Security Agreement.
SECTION 6. Governing Law. This Trademark Security Agreement and the transactions contemplated hereby, and all disputes between the parties under or relating to this Trademark Security Agreement or the facts or circumstances leading to its execution, whether in contract, tort or otherwise, shall be construed in accordance with and governed by the law of the State of New York.
SECTION 7. Collateral Agent. The Collateral Agent is entering into this Trade- mark Security Agreement not in its individual capacity but solely in its capacity as Collateral Agent under the Credit Agreement. All rights, protections, indemnities and benefits granted to the Collateral Agent in the Credit Agreement or any other Credit Documents are hereby incorpo- rated as if fully set forth in this Trademark Security Agreement.
[signature page follows]
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IN WITNESS WHEREOF, each Pledgor has caused this Trademark Security Agree- ment to be executed and delivered by its duly authorized officer as of the date first set forth above.
Very truly yours, [PLEDGORS]
By: Name:
Title:
Accepted and Agreed:
JPMORGAN CHASE BANK, N.A.,
as Collateral Agent
By: Name:
Title:
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SCHEDULE I
to
TRADEMARK SECURITY AGREEMENT TRADEMARK REGISTRATIONS AND TRADEMARK APPLICATIONS
Trademark Registrations:
| | | | | | | | |
OWNER | REGISTRATION NUMBER |
TRADEMARK |
| | |
Trademark Applications:
| | | | | | | | |
OWNER | Serial NUMBER |
TRADEMARK |
| | |
EXHIBIT J
[FORM OF] LANDLORD’S ACCESS AGREEMENT
THIS LANDLORD’S ACCESS AGREEMENT (the “Agreement”) is made and entered into as of [ ], 20[ ] by and between [ ], having an office at [
] (“Landlord”) and JPMorgan Chase Bank, N.A., having an office at 10 S. Dearborn, Floor L2, IL1-1145, Chicago, IL 60603 as collateral agent (in such capacity, “Collateral Agent”) for the benefit of the Secured Parties (as hereinafter defined) under the Credit Agreement (as hereinafter defined).
R E C I T A L S :
A.Landlord is the record title holder and owner of the real property described in Schedule A attached hereto (the “Real Property”).
B.Landlord has leased all or a portion of the Real Property (the “Leased Premises”) to [ ] (“Lessee” [or “Borrower”]) pursuant to a certain lease agreement or agreements described in Schedule B attached hereto (collectively, and as amended, amended and restated, supplemented or otherwise modified from time to time, the “Lease”).
C.[Lessee,] [(“Borrower”),], a [ ] (“Parent”) and the Collateral Agent, among others, are, in connection with the execution and delivery of this Agreement, entering into a credit agreement, to be dated as of December 29, 2022, (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”; capitalized terms used and not otherwise defined herein shall have the meanings assigned to such terms in the Credit Agreement), pursuant to which the Lenders have agreed to make certain loans to Borrower (collectively, the “Loans”).
[D. [The Lessee is a subsidiary of Borrower.] [Borrower is a subsidiary of the Lessee]24
E.The Lessee has, pursuant to the Credit Agreement, guaranteed the obligations of the Borrower under the Credit Agreement and the other documents evidencing and securing the Loans (collectively, the “Loan Documents”).]25
F.As security for the payment and performance of Lessee’s Obligations under the Credit Agreement and the other Credit Documents, Collateral Agent (for its benefit and the benefit of the Secured Parties) has or will acquire a security interest in and lien upon all of Lessee’s personal property, inventory, accounts, goods, machinery, equipment, furniture and fixtures (together with all additions, substitutions, replacements and improvements to, and proceeds of, the foregoing, collectively, the “Personal Property”).
G.Collateral Agent has requested that Landlord execute this Agreement as a condition precedent to the making of the Loans under the Credit Agreement.
24 Include one of these alternatives if Borrower is not the Lessee.
25 Include if Borrower is not the Lessee
A G R E E M E N T :
NOW, THEREFORE, for and in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Landlord hereby represents, warrants and agrees in favor of Collateral Agent, as follows:
Landlord certifies that (i) Landlord is the landlord under the Lease described in Schedule B attached hereto, (ii) the Lease is in full force and effect and has not been amended, modified or supplemented except as set forth in Schedule B hereto and (iii) Landlord has sent no notice of default to Lessee under the Lease respecting a default which has not been cured by Lessee.
II.Landlord agrees that the Personal Property is and will remain personal property and not fixtures even though it may be affixed to or placed on the Leased Premises. Landlord further agrees that Collateral Agent has the right to remove the Personal Property from the Leased Premises at any time in accordance with the terms of the Loan Documents; provided that Collateral Agent shall repair any damage arising from such removal. Landlord further agrees that it will not hinder Collateral Agent’s actions in removing Personal Property from the Leased Premises or Collateral Agent’s actions in otherwise enforcing its security interest in the Personal Property. Collateral Agent shall not be liable for any diminution in value of the Leased Premises caused by the absence of Personal Property actually removed or by the need to replace the Personal Property after such removal. Landlord acknowledges that Collateral Agent shall have no obligation to remove the Personal Property from the Leased Premises.
III.Landlord acknowledges and agrees that Lessee’s granting of a security interest in the Personal Property in favor of the Collateral Agent (for the benefit of the Secured Parties) shall not constitute a default under the Lease nor permit Landlord to terminate the Lease or re-enter or repossess the Leased Premises or otherwise be the basis for the exercise of any remedy by Landlord and Landlord hereby expressly consents to the granting of such security interest and agrees that such security interest shall be superior to any lien of the Landlord (statutory or otherwise) in the Personal Property.
IV.The terms and provisions of this Agreement shall inure to the benefit of and be binding upon the successors and assigns of Landlord (including, without limitation, any successor owner of the Real Property) and Collateral Agent. Landlord will disclose the terms and conditions of this Agreement to any purchaser or successor to Landlord’s interest in the Leased Premises.
V.All notices to any party hereto under this Agreement shall be in writing and sent to such party at its respective address set forth above (or at such other address as shall be designated by such party in a written notice to the other party complying as to delivery with the terms of this Section 5) by certified mail, postage prepaid, return receipt requested or by overnight delivery service.
VI.The provisions of this Agreement shall continue in effect until Landlord shall have received Collateral Agent’s written certification that the Loans have been paid in full and all of Borrower’s other Obligations under the Credit Agreement and the other Loan Documents have been satisfied.
VII.THE INTERPRETATION, VALIDITY AND ENFORCEMENT OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
VIII.Landlord agrees to execute, acknowledge and deliver such further instruments as Collateral Agent may request to allow for the proper recording of this Agreement (including, without limitation, a revised landlord’s access agreement in form and substance sufficient for recording) or to otherwise accomplish the purposes of this Agreement.
IN WITNESS WHEREOF, Landlord and Collateral Agent have caused this Agreement to be duly executed and delivered by their duly authorized officers as of the date first above written.
, as Landlord
By: Name:
Title:
JPMorgan Chase Bank, N.A., as Collateral Agent
By: Name:
Title:
EXHIBIT K
[FORM OF] BAILEE’S LETTER
, 20_
[INSERT NAME AND ADDRESS OF BAILEE]
Re: Notice of Security Interest Ladies and Gentlemen:
[INSERT NAME OF COMPANY] (the “Company”), from time to time, has and will deliver inventory, equipment or other goods or other personal property owned by the Company (the “Goods”) to [NAME OF BAILEE] (“you”) for storage, processing or other use at your facilities at the address shown above.
The Company will enter into that certain Revolving Credit and Guaranty Agreement, dated on or around December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self-
Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMorgan Chase Bank, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
PLEASE NOTE THAT IT IS A CONDITION PRECEDENT TO THE EXTENSION OF CREDIT AND OTHER FINANCIAL ACCOMMODATIONS TO THE APPLICABLE BORROWERS UNDER EACH OF THE CREDIT AGREEMENTS THAT THE COMPANY GRANTS LIENS IN FAVOR OF EACH OF THE COLLATERAL AGENTS, FOR THE BENEFIT OF THE APPLICABLE SECURED PARTIES, IN SUBSTANTIALLY ALL OF THE TANGIBLE AND INTANGIBLE PERSONAL PROPERTY OF THE COMPANY, INCLUDING, WITHOUT LIMITATION, THE GOODS.
The security interest of each Applicable Collateral Agent in the Goods shall be senior to all liens, claims and interests other than any lien you may have on any Goods for any accrued and unpaid storage and/or processing charges for the actual storage and/or processing of such Goods. To protect the Applicable Collateral Agent’s security interest in the Goods, if you issue storage receipts or other documents of title which evidence any Goods now or hereafter delivered to you, please make those documents non-negotiable and note on them that they have been issued to or for the account of the Applicable Collateral Agents.
Until further notice to you in writing from any Applicable Collateral Agent, you may release any Goods to any authorized agent of the Company or upon the Company’s request and you may issue non- negotiable warehouse receipts or non-negotiable documents of title to the Company. However, upon written direction of any Applicable Collateral Agent, you agree not to deliver any further Goods to the Company or its designated recipient, but to hold all Goods subject to the further direction of such Applicable Collateral Agent and, upon receipt of such written direction, you will issue no further warehouse receipts or other documents of title, except as directed by such Applicable Collateral Agent.
The Company agrees that you shall have no liability to the Company if you comply with the written directions of any Applicable Collateral Agent as described above. The Company further agrees that it will continue to pay all reasonable storage expenses related to the storage of the Goods and will reimburse you for all reasonable costs and expenses incurred as a direct result of your compliance with the terms and provisions of this Bailee Letter. Each Applicable Collateral Agent agrees that you shall have no liability to the other Applicable Collateral Agent if you comply with the written directions of the other Applicable Collateral Agent in accordance with the terms of this Bailee Letter.
Each Applicable Collateral Agent (for itself and on behalf of the applicable Secured Parties) and the Company acknowledges and agrees that this Bailee Letter is subject to the terms of that certain Intercreditor Agreement, to be dated on or around December 29, 2022, by and among the (i) JPMorgan, as an ABL Representative (as defined therein), (ii) the European Collateral Agent, as an ABL Representative (as defined therein) (iii) the European Collateral Agent, as collateral agent under the Super Priority Credit Agreement (as defined therein), initial Controlling Notes Representative (as defined therein) and Notes Representative for the Notes Secured Parties (as defined therein), (iv) JPMorgan, as collateral agent under the Existing Credit (as defined therein), (v) the European Collateral Agent, as
collateral agent under the Extended Credit Agreement (as defined therein), (vi) the European Collateral Agent, as collateral agent under the New Notes Indenture (as defined therein), (vii) the European Collateral Agent, as collateral agent under the Existing USD Notes Indenture (as defined therein), (viii) the European Collateral Agent, as collateral agent under the Existing EUR Notes Indenture (as defined therein), (ix) each additional representative in respect of Additional Debt (as defined therein) from time to time party thereto, (x) each of the Loan Parties party thereto, (xi) each Term Administrative Agent (as defined therein) and (xii) each Notes Trustee (as defined therein).
This Bailee Letter may be executed in any number of several counterparts and shall in all respects be governed by and construed in accordance with the laws of the State of New York.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Please confirm receipt of this letter and your agreement to delivery instructions contained herein by signing a copy of this letter as indicated and return it as soon as possible to: [JPMORGAN CHASE BANK, N.A., 10 S. Dearborn, Floor L2, IL1-1145, Chicago, IL 60603; Attention: Jerome Prince; facsimile: (888) 303-9732][GLAS AMERICAS LLC, 3 Second Street, Suite 206, Jersey City, NJ 07311; Attention: TMGUS; email: TMGUS@glas.agency; clientservices.americas@glas.agency], with a copy to [Company].
Very truly yours,
[JPMORGAN CHASE BANK, N.A.]
By: Name:
Title:
[GLAS AMERICAS LLC]
By: Name:
Title:
ACKNOWLEDGED AND AGREED
this day of , 20 : [BAILEE]
By: Name:
Title: [COMPANY]
By: Name:
Title:
EXHIBIT L
[FORM OF] BORROWING BASE CERTIFICATE
Date: , 20
Reference is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self- Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”).
Pursuant to Section 5.12(a) of the ABL Credit Agreement, the undersigned Officer of Parent Borrower hereby certifies that as of the close of business on the date set forth above, the applicable Borrowing Base of each Borrower is computed as set forth on Exhibit A attached hereto.
[Signature Page Follows]
IN WITNESS WHEREOF, I have executed this Certificate as of the date first written above.
DIEBOLD NIXDORF, INCORPORATED
By: Name:
Title
EXHIBIT A TO THE FORM OF BORROWING BASE CERTIFICATE
[Separately Attached
EXHIBIT M
INTERCREDITOR AGREEMENT
[Separately Attached]
Execution Version
ABL INTERCREDITOR AGREEMENT
ABL Intercreditor Agreement (this “Agreement”), dated as of December 29, 2022, among
(i) JPMORGAN CHASE BANK, N.A., as an ABL Representative (as defined below), (ii) GLAS AMERICAS LLC, as collateral agent under the ABL Agreement and as an ABL Representative (as defined below), (iii) GLAS AMERICAS LLC, as collateral agent under the Super Priority Credit Agreement (as defined below) (in such capacity, with its successors and assigns, the “Super Priority Term Representative”), initial Controlling Term Debt Representative and Term Debt Representative for the Term Debt Secured Parties, (iv) GLAS AMERICAS LLC, as collateral agent under the Extended Credit Agreement (as defined below) (in such capacity, with its successors and assigns, the “Extended Term Representative”), (v) JPMORGAN CHASE BANK, N.A., as administrative agent under the Existing Credit Agreement (as defined below) (in such capacity, with its successors and assigns, the “Existing Term Representative”), (vi) GLAS AMERICAS LLC, as collateral agent under the New Notes Indenture (as defined below) (in such capacity, with its successors and assigns, the “New Term Debt Representative”),
(vii) GLAS AMERICAS LLC, as collateral agent under the Existing USD Notes Indenture (as defined below) (in such capacity, with its successors and assigns, the “Existing USD Notes Representative”), (viii) GLAS AMERICAS LLC, as collateral agent under the Existing EUR Notes Indenture (as defined below) (in such capacity, with its successors and assigns, the “Existing EUR Notes Representative”), (ix) each additional representative in respect of Additional Debt from time to time party hereto pursuant to Section 11.5(B) and each of the Loan Parties (as defined below) party hereto, (x) each Term Administrative Agent (as defined below), (xi) each Notes Trustee (as defined below); and (xii) GLAS AMERICAS LLC, as collateral agent for the Secured Parties (as defined below) (in such capacity, with its successors and assigns, the “European Collateral Agent”).
WHEREAS Diebold Nixdorf, Incorporated, an Ohio corporation (“Company”), the other Loan Parties party thereto as borrowers and guarantors, JPMORGAN CHASE BANK, N.A., as administrative agent (the “ABL Administrative Agent”), each ABL Representative and certain financial institutions and other entities are parties to the Credit Agreement dated as of December 29, 2022 (the “Existing ABL Agreement”), pursuant to which such financial institutions and other entities have agreed to make loans and extend other financial accommodations to the Loan Parties;
WHEREAS (i) Company, Diebold Nixdorf Holding Germany GmbH, GLAS USA LLC, as administrative agent (in such capacity, with its successors and assigns, the “Super Priority Term Administrative Agent”), the Super Priority Term Representative, certain Subsidiaries of the Company and certain other financial institutions are parties to the Credit Agreement, dated as of December 29, 2022 (the “Super Priority Credit Agreement”), and the obligations under the Super Priority Credit Agreement are guaranteed by the Loan Parties, (ii) Company, JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, with its successors and assigns, the “Existing Term Administrative Agent”), the Existing Term Representative, certain Subsidiaries of the Company and certain other financial institutions are parties to the Credit Agreement, dated as of November 23, 2015 (the “Existing Credit Agreement”), and the obligations under the Existing Credit Agreement are guaranteed by certain of the Loan Parties,
(iii) Company, JPMORGAN CHASE BANK, N.A., as administrative agent (in such capacity, with its successors and assigns, the “Extended Term Administrative Agent”), the Extended Term Representative, certain Subsidiaries of the Company and certain other financial institutions are parties to the Credit Agreement, dated as of December 29, 2022 (the “Extended Credit Agreement” and, together with the Super Priority Credit Agreement and the Existing Credit Agreement, the “Term Credit Agreements”), and the obligations under the Extended Credit Agreement are guaranteed by the Loan Parties, (iv) Company, U.S. Bank Trust Company, National Association, as trustee (in such capacity, with its successors and assigns,
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the “New Notes Trustee”) and the New Term Debt Representative are parties to the Indenture dated as of December 29, 2022 (the “New Notes Indenture”), pursuant to which Company, on such date, issued its 8.50% senior secured notes due 2026 (including any additional notes issued pursuant to the New Notes Indenture, the “New Secured Notes”), and the New Secured Notes are guaranteed by the Loan Parties, (v) Company, U.S. Bank Trust Company, National Association, as trustee (in such capacity, with its successors and assigns, the “Existing USD Notes Trustee”) and the Existing USD Notes Representative, are parties to the Indenture dated as of July 20, 2020 (the “Existing USD Notes Indenture”), pursuant to which Company, on such date, issued its 9.375% senior secured notes due 2025 (including any additional notes issued pursuant to the Existing Notes Indenture, the “Existing USD Secured Notes”), and the Existing USD Secured Notes are guaranteed by the Loan Parties and (vi) Company, Diebold Nixdorf Dutch Holding B.V. (the “Euro Notes Issuer”), U.S. Bank Trust Company, National Association, as trustee (in such capacity, with its successors and assigns, the “Existing EUR Notes Trustee”) and the Existing EUR Notes Representative are parties to the Indenture dated as of July 20, 2020 (the “Existing EUR Notes Indenture” and, together with the New Notes Indenture and the Existing USD Notes Indenture, the “Indentures”), pursuant to which the Euro Notes Issuer, on such date, issued its 9.000% senior secured notes due 2025 (including any additional notes issued pursuant to the Existing Notes Indenture, the “Existing EUR Secured Notes” and, together with the New Secured Notes and the Existing USD Secured Notes, the “Existing Notes”), and the Existing EUR Secured Notes are guaranteed by the Loan Parties;
WHEREAS, Company has granted to each ABL Representative security interests in the ABL Collateral as security for payment and performance of the ABL Obligations; and
WHEREAS, Company has granted to each Term Debt Representative security interests in the Term Debt Collateral as security for payment and performance of the Term Debt Obligations.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants herein contained and other good and valuable consideration, the existence and sufficiency of which is expressly recognized by all of the parties hereto, the parties agree as follows:
SECTION 1. Definitions; Rules of Construction.
1.1 Certain Definitions. The following terms which are defined in the Uniform Commercial Code (or, with respect to Foreign Collateral, similar or equivalent foreign laws) are used herein as so defined: Accounts, Chattel Paper, Commercial Tort Claims, Commodities Accounts, Deposit Accounts, Documents (which shall include “Documents of Title” as defined in the PPSA), Equipment, General Intangibles (which shall include “Intangibles” as defined in the PPSA), Goods, Instruments, Inventory, Investment Property, Letter of Credit, Letter of Credit Rights, Payment Intangibles, Records, Securities Accounts and Supporting Obligations.
1.2. Defined Terms. The following terms, as used herein, have the following meanings:
“ABL Administrative Agent” has the meaning set forth in the second WHEREAS clause of this Agreement.
“ABL Agreement” means the collective reference to (a) the Existing ABL Agreement, (b) any Additional ABL Agreement and (c) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any indebtedness or other financial accommodation that has been incurred to extend, replace, refinance or refund in whole or in part the indebtedness and other obligations outstanding under the Existing ABL Agreement (regardless of whether such replacement, refunding or refinancing is a “working capital”
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facility, asset-based facility or otherwise), any Additional ABL Agreement or any other agreement or instrument referred to in this clause (c) unless such agreement or instrument expressly provides that it is not intended to be and is not an ABL Agreement hereunder (a “Replacement ABL Agreement”). Any reference to the ABL Agreement hereunder shall be deemed a reference to any ABL Agreement then extant.
“ABL Collateral” means all assets, whether now owned or hereafter acquired by any Loan Party, in which a Lien is granted or purported to be granted at any time to any ABL Secured Party as security for any ABL Obligation (including, but not limited to, Accounts, Chattel Paper, Intellectual Property, Documents, General Intangibles, Instruments, Inventory, Investment Property, Letters of Credit and Letter- of-Credit Rights, Payment Intangibles, Supporting Obligations, Deposit Accounts, Securities Accounts, Commodities Accounts, cash or cash equivalents, Commercial Tort Claims, Equipment, Goods, insurance and accessions to, substitutions for, and replacements, Proceeds and products of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts, and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing, and all other assets of each Loan Party now or hereafter in which a Lien is granted or purported to be granted at any time to any ABL Secured Party as set forth in the ABL Security Documents).
“ABL Creditors” means, collectively, the “Lenders” and the “Secured Parties,” each as defined in the ABL Agreement or any Persons that are designated under the ABL Agreement as the “ABL Creditors” for purposes of this Agreement.
“ABL DIP Financing” has the meaning set forth in Section 5.2(a).
“ABL Documents” means each ABL Agreement, each ABL Security Document, each ABL Guarantee and each other “Credit Document” as defined in the ABL Agreement.
“ABL Guarantee” means any guarantee by any Loan Party of any or all of the ABL Obligations, including each other guaranty or guaranty supplement delivered pursuant to Section 5.11 or Section 7.1 of the Existing ABL Agreement.
“ABL Lien” means any Lien created by the ABL Security Documents.
“ABL Obligations” means (a) all principal of and interest (including, without limitation any Post- Petition Interest) and premium (if any) on all indebtedness under the ABL Documents in respect of the ABL Agreement or any ABL DIP Financing by the ABL Creditors, (b) all reimbursement obligations (if any) and interest thereon (including without limitation any Post-Petition Interest) with respect to any letter of credit or similar instruments issued pursuant to the ABL Agreement, (c) all Swap Obligations, (d) all Banking Services Obligations and (e) all penalties, guarantee obligations, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, expenses (including, without limitation, all fees and disbursements of counsel to the ABL Representatives or any ABL Creditors), damages and other liabilities payable from time to time pursuant to the ABL Documents, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any ABL Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any Term Debt Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
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“ABL Obligations Payment Date” means the first date on which (a) all ABL Obligations (other than those that constitute Unasserted Contingent Obligations) have been indefeasibly paid in cash in full (or cash collateralized or defeased in accordance with the terms of the ABL Documents), (b) all commitments to extend credit under the ABL Documents have been terminated, (c) there are no outstanding letters of credit or similar instruments issued under the ABL Documents (other than such as have been cash collateralized or defeased in accordance with the terms of the ABL Documents), (d) termination or cash collateralization (in an amount reasonably satisfactory to the applicable ABL Representative and each applicable ABL Creditor providing such Banking Services Obligations and/or Swap Obligations) of all Banking Services Obligations and Swap Obligations and (e) so long as the Term Debt Obligations Payment Date shall not have occurred, each ABL Representative has delivered a written notice to the Controlling Term Debt Representative stating that the events described in clauses (a), (b), (c) and (d) have occurred to the satisfaction of the ABL Secured Parties.
“ABL Priority Collateral” means all Collateral consisting of the following (subject to Section 11.17 in respect of Foreign Loan Parties and Foreign Collateral):
(1)Accounts;
(2)Payment Intangibles;
(3)Inventory;
(4)General Intangibles, intangibles, trade receivables, Instruments, Documents, documents of title and Chattel Paper evidencing or substituted for the foregoing;
(5)all Deposit Accounts, including any account with a deposit function, with any bank or other financial institution (including all cash, cash equivalents, financial assets, negotiable instruments and other evidence of payment, and other funds on deposit therein or credited thereto) except to the extent such assets constitute identifiable proceeds of Term Debt Priority Collateral;
(6)all Securities Accounts with any securities intermediary (including any and all Investment Property held therein or credited thereto) except to the extent that such Investment Property constitutes identifiable proceeds of Term Debt Priority Collateral;
(7)all Commodities Accounts with any commodities intermediary (including any and all Investment Property held therein or credited thereto) except to the extent that such Investment Property constitutes identifiable proceeds of Term Debt Priority Collateral;
(8)all business interruption insurance;
(9)all accessions to, substitutions for and replacements of the foregoing, together with all books and records, customer lists, credit files, computer files, programs, printouts and other computer materials and records related thereto and any General Intangibles at any time evidencing or relating to any of the foregoing;
(10)all Commercial Tort Claims, Letter of Credit Rights, Records relating to the foregoing; and
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(11)to the extent not otherwise included, all Proceeds (including without limitation, all insurance proceeds), Supporting Obligations and products of any and all of the foregoing and all collateral security and guarantees given by any Person with respect to any of the foregoing;
provided, however, that, any Collateral, regardless of type, received in exchange for ABL Priority Collateral pursuant to an Enforcement Action in accordance with the terms of the Existing ABL Agreement and this Agreement shall be treated as ABL Priority Collateral under this Agreement, the Term Debt Security Documents and the ABL Security Documents; provided, further, that any Collateral of the type that constitutes ABL Priority Collateral, if received in exchange for Term Debt Priority Collateral pursuant to an Enforcement Action in accordance with the terms of the Term Debt Agreements and this Agreement, shall be treated as Term Debt Priority Collateral under this Agreement, the Term Debt Security Documents and the ABL Security Documents; provided, further, that ABL Priority Collateral shall exclude, however, all Term Debt Priority Collateral (other than Term Debt Priority Collateral which is treated as ABL Priority Collateral as set forth in the first proviso above), it being understood and agreed that the ABL Secured Parties remain entitled to the benefit of their second priority Lien in any such Collateral; and, provided, further, however, that “ABL Priority Collateral” shall include proceeds from the disposition of any Term Debt Priority Collateral permitted by the ABL Agreement and the Term Debt Agreement to the extent such proceeds would otherwise constitute ABL Priority Collateral and are not required to be applied to the mandatory prepayment of the Term Debt Obligations pursuant to the Term Debt Documents, unless such proceeds arise from a disposition of Term Debt Priority Collateral resulting from any Enforcement Action taken by the Term Debt Secured Parties permitted by this Agreement.
“ABL Representative” means (a) in the case of any ABL Priority Collateral owned or hereinafter acquired by any Loan Party other than a Loan Party incorporated under the laws of any European country, JPMORGAN CHASE BANK, N.A. (together with its successors and assigns), as collateral agent for the ABL Secured Parties, (b) in the case of any ABL Priority Collateral owned or hereinafter acquired by any Loan Party incorporated under the laws of any European country other than France, the European Collateral Agent (together with its successors and assigns) as collateral agent for, amongst others, the ABL Secured Parties but acting solely in this capacity on the instructions of the ABL Administrative Agent; (c) in the case of any ABL Priority Collateral owned or hereinafter acquired by any Loan Party incorporated under the laws of France, GLAS AMERICAS LLC (together with its successors and assigns) as collateral agent for the ABL Secured Parties only and (c) in the case of any Replacement ABL Agreement or any other ABL Agreement, the Person identified as such in such Agreement.
“ABL Secured Parties” means each ABL Representative, the ABL Administrative Agent, the ABL Creditors and any other holders of the ABL Obligations.
“ABL Security Documents” means collectively, the Security Agreement, dated as of December 29, 2022, among the Company, the other Loan Parties from time to time party thereto and the applicable ABL Representative for the ratable benefit of the ABL Secured Parties, any additional Security Documents (as defined in the Existing ABL Agreement), any additional pledges, security agreements or mortgages that create or purport to create a Lien in favor of any ABL Representative for the benefit of the ABL Secured Parties, any Common Security Documents, and any instruments of assignment, control agreements, lockbox letters or other instruments or agreements executed pursuant to the foregoing, and any other documents that are designated under the ABL Agreement as “ABL Security Documents” for purposes of this Agreement.
“Access Period” means, with respect to each parcel or item of Term Debt Priority Collateral, the period, following the commencement of any Enforcement Action, which begins on the earlier of (a) the day on which the Controlling ABL Representative provides the Controlling Term Debt Representative with the notice of its election to request access to such parcel or item of Term Debt Priority Collateral pursuant to
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Section 3.4(c) and (b) the fifth Business Day after the Controlling Term Debt Representative provides the Controlling ABL Representative with notice that the Controlling Term Debt Representative (or its agent) has obtained possession or control of such parcel or item of Term Debt Priority Collateral and ends on the earliest of (i) the day which is 180 days after the date (the “Initial Access Date”) on which the Controlling ABL Representative initially obtains the ability to take physical possession of, remove or otherwise control physical access to, or actually uses, such parcel or item of Term Debt Priority Collateral plus such number of days, if any, after the Initial Access Date that it is stayed or otherwise prohibited by law or court order from exercising remedies with respect to associated ABL Priority Collateral, (ii) the date on which all or substantially all of the ABL Priority Collateral associated with such parcel or item of Term Debt Priority Collateral is sold, collected or liquidated, (iii) the ABL Obligations Payment Date and (iv) the date on which the default which resulted in such Enforcement Action has been cured or waived in writing.
“Account Agreements” means any lockbox account agreement, pledged account agreement, blocked account agreement, securities account control agreement, commodities account control agreement, credit card processing agreement or any similar deposit, commodity or securities account agreements among any ABL Representative and/or any Term Debt Representative and/or European Collateral Agent and a Loan Party and the relevant service provider, financial institution, depository or intermediary (or any local law equivalent, including a notice and acknowledgement).
“Additional ABL Agreement” means any agreement evidencing or governing the incurrence of additional indebtedness that is permitted to be secured by the ABL Collateral on a pari passu basis with other ABL Obligations and treated as an ABL Agreement pursuant to the ABL Agreement and any agreement approved for designation as such by each ABL Representative and each Term Debt Representative.
“Additional Term Debt Agreement” means any credit agreement, indenture, loan agreement, note agreement, promissory note, or other agreement or instrument evidencing or governing the incurrence of additional indebtedness that is permitted to be secured by the Term Debt Collateral and treated as a Term Debt Agreement pursuant to the Term Debt Agreement and any agreement approved for designation as such by each ABL Representative and each Term Debt Representative.
“Agents” means, collectively, the ABL Administrative Agent, each Term Administrative Agent and each Notes Trustee.
“Agreed Firms” shall have the meaning set forth in Section 3.7(a).
“Agreed List” shall mean any of Interpath Advisory, PriceWaterhouseCoopers, Ernst & Young, Teneo, Mazars, AlixPartners, FTI Consulting and Smith and Williamson.
“Agreement” has the meaning set forth in the introductory paragraph hereof.
“Applicable Debt Documents” when used in relation to any Agent or Representative, the Debt Agreement to which such Agent or Representative is a party and the other Debt Documents related to such Debt Agreement.
“Applicable Security Documents” when used in relation to any Agent or Representative, the Security Agreements that constitute Applicable Debt Documents with respect to such Agent or Representative.
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“Banking Services Obligations” means, as applied to any Loan Party, any direct or indirect liability, contingent or otherwise, of such Loan Party (i) in respect of cash management services (including treasury, depository, overdraft, credit or debit card, electronic funds transfer and other cash management arrangements) which have been designated in writing under the ABL Agreement as “Cash Management Obligations” in accordance with the terms of the ABL Agreement or (ii) under any agreement between the Company and/or any of its Subsidiaries and a financial institution providing for the issuance of letters of credit, bank guarantees and/or similar obligations which agreement has been designated in writing as a “Bi- lateral LC/WC Agreement” under and in accordance with the terms of the ABL Agreement, in each case, including obligations for the payment of fees, interest, charges, expenses, attorneys’ fees and disbursements in connection therewith.
“Bankruptcy Code” means the United States Bankruptcy Code (11 U.S.C. §101 et seq.), as amended from time to time.
“Bankruptcy Law” shall mean, as applicable, (a) the Bankruptcy Code and (b) and any similar federal or state or non-U.S. law or statute for the supervision, administration or relief of debtors, including the Bankruptcy and Insolvency Act (Canada), the Companies’ Creditors Arrangement Act (Canada), the Winding-up and Restructuring Act (Canada), the Canada Business Corporations Act (or any other Canadian corporate statute where such statute is used by a Person to propose an arrangement), the UK Insolvency Act 1986, the German Insolvency Code (Insolvenzordnung), the Italian Bankruptcy Law or Italian Crisis and Insolvency Code, the Dutch Bankruptcy Act (Faillissementswet), the Book XX (Insolventie van de ondernemingen/Insolvabilité des entreprises) of the Belgian Economic Law Code (Wetboek Economisch Recht/Code de droit éeconomique), the Council of the European Union Regulation 2015/848 on insolvency proceedings, the provisions of Book VI (Livre Sixième) of the French Commercial Code, the Spanish Insolvency Law, the Swedish Reorganisation Act (Sw. lag (2022:964) om företagsrekonstruktion), the Polish Insolvency Law dated 28 February 2003 (Prawo upadłościowe) and the Polish Restructuring Law dated 15 May 2015 (Prawo restrukturyzacyjne) and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, arrangement, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect (including any applicable corporations legislation to the extent the relief sought under such corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt).
“Belgian Financial Collateral Law” means the Belgian law of 15 December 2004 on financial collateral, as amended from time to time.
“Belgian MAS Law” means Title XVII of Book III (Zakelijke zekerheden op roerende goederen/sûretés réelles mobilières) of the Old Belgian Civil Code, as amended by the law of 11 July 2013 amending the Old Belgian Civil Code in respect of security on movable assets and abolishing various relevant provisions, as amended from time to time.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed provided that for the purposes of Section 3.7, any day on which banks are not open for general business in London shall also be excluded.
“Collateral” means, collectively, all ABL Collateral and all Term Debt Collateral.
“Common Collateral” means all Collateral that constitutes both (i) ABL Collateral and (ii) Term Debt Collateral securing any series of Term Debt Obligations (it being understood that different series of Term Debt Obligations may be secured by different collateral and such fact shall not limit Collateral that is
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both ABL Collateral and Term Debt Collateral for any series of Term Debt Obligations from being Common Collateral).
“Common Lien” means each Lien on Foreign Collateral (other than Collateral located in or otherwise governed by the laws of any province or territory of Canada or France) pursuant to Common Security Documents under which there is a single common Lien in favor of the European Collateral Agent for the benefit of the ABL Secured Parties and the Term Debt Secured Parties, collectively.
“Common Lien Excluded Accounts” means (i) payroll, disbursement and other fiduciary accounts,
(ii) other accounts as long as the aggregate balance for all Loan Parties in all such other accounts does not exceed the Dollar Equivalent (as defined in the ABL Agreement) of $2,500,000 at any time, (iii) other trust, escrow, customs and fiduciary accounts, (iv) cash collateral accounts solely holding cash collateral upon which Liens that are expressly permitted under each of the Debt Agreements exist and (v) tax accounts, including, without limitation, sales tax accounts.
“Common Lien Excluded Assets” means any asset that constitutes an “Excluded Asset” (or term having an equivalent meaning) under and as defined in each of the Debt Agreements (it being understood, for the avoidance of doubt, that if an asset does not constitute an “Excluded Asset” (or term having an equivalent meaning) under and as defined in any Debt Agreement, it shall not constitute a Common Lien Excluded Asset).
“Common Security Documents” means any pledges, security agreements or mortgages that create or purport to create a Lien in favor of the European Collateral Agent for the benefit of the Secured Parties and any instruments of assignment, control agreements (including notices and acknowledgements), lockbox letters or other instruments or agreements executed pursuant to the foregoing, and any other documents that are designated under as “Common Security Documents” for purposes of this Agreement by the ABL Representative and the Controlling Term Debt Representative.
“Company” has the meaning set forth in the first WHEREAS clause above.
“Comparable Security Document” means, in relation to any Senior Collateral subject to any Senior Security Document, that Junior Security Document that creates a security interest in the same Senior Collateral, granted by the same Loan Party, as applicable.
“Control Representative” has the meaning set forth in Section 2.6(b).
“Controlling ABL Representative” means (i) prior to the ABL Obligations Payment Date in respect of the Existing ABL Agreement, each ABL Representative under the Existing ABL Agreement (or any Replacement ABL Agreement in respect of the Existing ABL Agreement) until the ABL Obligations Payment Date under the Existing ABL Agreement (or such Replacement ABL Agreement) and (ii) after the ABL Obligations Payment Date in respect of the Existing ABL Agreement, the ABL Representative of the series of ABL Obligations that constitutes the largest outstanding principal amount of any then outstanding series of ABL Obligations.
“Controlling Term Debt Representative” means, with respect to any Term Debt Priority Collateral, the “Controlling Term Debt Representative” under, and as defined in, the Multi Lien Intercreditor Agreement.
“Controlling Senior Representative” shall mean (a) with respect to any ABL Obligations or any ABL Priority Collateral, the ABL Representative that is the Controlling ABL Representative and (b) with
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respect to any Term Debt Obligations or any Term Debt Priority Collateral, the Term Debt Representative that is the Controlling Term Debt Representative.
“Copyright Licenses” means any and all agreements granting any right in, to or under Copyrights (whether a Loan Party is licensee or licensor thereunder).
“Copyrights” means all United States, state and foreign copyrights, including but not limited to copyrights in software and databases, all works of authorship and all “Mask Works” (as defined under 17 U.S.C. 901 of the U.S. Copyright Act), whether registered or unregistered and whether the underlying works of authorship are published or unpublished, now or hereafter in force, and with respect to any and all of the foregoing: (i) all registrations and applications therefor, (ii) all extensions and renewals thereof, (iii) all rights corresponding thereto throughout the world, (iv) all rights to sue for past, present and future infringements or other violations thereof and (v) all Proceeds of any of the foregoing, including license fees, income, claims, damages, Proceeds of suit, payments and royalties, including rights to payments and royalties arising out of the sale, lease, license, assignment, or other disposition thereof.
“Debt Agreements” means, collectively, the ABL Agreements and the Term Debt Agreements.
“Debt Documents” means, collectively, the ABL Documents and the Term Debt Documents.
“Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
“Enforcement Action” means, with respect to the ABL Obligations or the Term Debt Obligations, the exercise of any rights and remedies with respect to any Common Collateral securing such obligations or the commencement or prosecution of enforcement of any of the rights and remedies under, as applicable, the ABL Documents or the Term Debt Documents, or applicable law, including without limitation the exercise of any rights of set-off or recoupment, and the exercise of any rights or remedies of a secured creditor under the Uniform Commercial Code (or, with respect to Foreign Collateral, similar or equivalent foreign laws) of any applicable jurisdiction or under the Bankruptcy Code or other similar Bankruptcy Law, but excluding (a) the imposition of any default rate or late fee and (b) so long as no other Enforcement Action has been taken, the collection or application of, or the delivery of any activation notice under Account Agreements with respect to, funds from time to time on deposit in any Deposit Account, Commodity Account or Securities Account representing ABL Priority Collateral.
“Euro Notes Issuer” has the meaning set forth in the second WHEREAS clause of this Agreement.
“European Collateral Agent” has the meaning set forth in the first paragraph of this Agreement.
“Event of Default” means any event or circumstance specified as such in any Debt Agreement.
“Existing ABL Agreement” has the meaning set forth in the first WHEREAS clause of this Agreement.
“Existing Credit Agreement” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing Credit Agreement Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Existing Credit
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Agreement and (b) all guarantee obligations, indemnities, fees, expenses and other amounts payable from time to time pursuant to the Notes Documents in respect of the Existing Credit Agreement, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Existing Credit Agreement Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Notes Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Existing EUR Notes” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing EUR Notes Indenture” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing EUR Notes Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Term Debt Documents in respect of the Existing EUR Notes Indenture, and (b) all penalties, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, damages and other liabilities payable from time to time pursuant to the Term Debt Documents in respect of the Existing EUR Notes Indenture, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Existing EUR Notes Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Existing EUR Notes Trustee” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing Notes” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing Term Administrative Agent” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing Term Representative” has the meaning set forth in the first paragraph of this Agreement.
“Existing USD Notes” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing USD Notes Indenture” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Existing USD Notes Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Term Debt Documents in respect of the Existing USD Notes Indenture, and (b) all penalties, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, damages and
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other liabilities payable from time to time pursuant to the Term Debt Documents in respect of the Existing USD Notes Indenture, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Existing USD Notes Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Existing USD Notes Representative” has the meaning set forth in the first paragraph of this Agreement.
“Existing USD Notes Trustee” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Extended Credit Agreement” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Extended Credit Agreement Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Term Debt Documents in respect of the Extended Credit Agreement and (b) all penalties, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, damages and other liabilities payable from time to time pursuant to the Term Debt Documents in respect of the Extended Credit Agreement, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Extended Credit Agreement Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Extended Term Administrative Agent” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Extended Term Representative” has the meaning set forth in the first paragraph of this Agreement.
“Foreign ABL Priority Collateral” has the meaning set forth in Section 11.17.
“Foreign Collateral” has the meaning set forth in Section 11.17.
“French Commercial Code” means the French Code de commerce.
“French Loan Party” means any Loan Party that is incorporated under the laws of France.
“Foreign Term Debt Priority Collateral” has the meaning set forth in Section 11.17.
“Global Liquidity Event Period” has the meaning given to such term in the ABL Agreement.
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“Indentures” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Insolvency Proceeding” means (a) any voluntary or involuntary case, petition, application or proceeding under the Bankruptcy Code or other applicable Bankruptcy Laws with respect to any Person,
(b) any other voluntary or involuntary insolvency, reorganization or bankruptcy case, petition, application or proceeding, or any receivership, liquidation, administration, reorganization or other similar case, petition, application or proceeding with respect to any Person or with respect to a material portion of its assets, (c) any liquidation, dissolution, reorganization or winding up of any Person whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, (d) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of any Person or (e) the appointment of a trustee, monitor, receiver, interim receiver, receiver and manager, liquidator, custodian or similar official for any Person or a material part of such Person’s property.
“Intellectual Property” means, collectively, Copyrights, Copyright Licenses, Patents, Patent Licenses, Trademarks, Trademark Licenses, Trade Secrets, and Trade Secret Licenses, and all other United States, state and foreign intellectual property rights, and with respect to any and all of the foregoing: (i) all registrations and applications therefor, (ii) all extensions and renewals thereof, (iii) all rights to sue for past, present and future infringements or other violations thereof, (iv) all Proceeds of any of the foregoing, including license fees, income, claims, damages, Proceeds of suit, payments and royalties, including rights to payments and royalties arising out of the sale, lease, license, assignment, or other disposition thereof, and (v) all rights corresponding to any of the foregoing throughout the world.
“Italian Banking Law” means the Legislative Decree No. 385 of 1 September 1993 and the relevant implementing regulations, each as amended, integrated and supplemented from time to time.
“Italian Bankruptcy Law” means the Italian Royal Decree No. 267 of 16 March 1942 (Disciplina del fallimento, del concordato preventivo e della liquidazione coatta amministrativa), as amended and supplemented from time to time (including pursuant to Decree Law No. 118 of 24 August 2021, as converted into law with amendments and supplemented from time to time).
“Italian Civil Code” means the Italian civil code (“codice civile”), enacted by Royal Decree No.
262 of 16 March 1942, as subsequently amended and supplemented.
“Italian Crisis and Insolvency Code” means the Legislative Decree No. 14 of 12 January 2019 (Codice della crisi d'impresa e dell'insolvenza in attuazione della legge 19 ottobre 2017, n. 155), as amended, supplemented and implemented from time to time (including by virtue of the Italian Legislative Decree No. 83 of 17 June 2022 implementing the EU Directive 2019/1023 of 20 June 2019, as supplemented from time to time).
“Italian Loan Party” means each Loan Party that is incorporated under the laws of Italy.
“Italian Usury Law” means Italian Law No. 108 of 7 March 1996, as subsequently amended and supplemented from time to time.
“Junior Collateral” shall mean with respect to any Junior Secured Party, any Collateral on which it has a Junior Lien.
“Junior Documents” shall mean, (a) with respect to any Junior Obligations that are Term Debt Obligations, the Term Debt Documents or any other document, instrument or certificate evidencing or delivered in connection with such Junior Obligation and (b) with respect to any Junior Obligations that are
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ABL Obligations, the ABL Documents or any other document, instrument or certificate evidencing or delivered in connection with such Junior Obligation.
“Junior Liens” shall mean (a) with respect to any ABL Priority Collateral, all Liens securing the Term Debt Obligations and (b) with respect to any Term Debt Priority Collateral, all Liens securing the ABL Obligations.
“Junior Obligations” shall mean (a) with respect to any ABL Priority Collateral, all Term Debt Obligations and (b) with respect to any Term Debt Priority Collateral, all ABL Obligations.
“Junior Representative” shall mean (a) with respect to any ABL Obligations or any ABL Priority Collateral, each Term Debt Representative and (b) with respect to any Term Debt Obligations or any Term Debt Priority Collateral, each ABL Representative.
“Junior Secured Parties” shall mean (a) with respect to the ABL Priority Collateral, all Term Debt Secured Parties and (b) with respect to the Term Debt Priority Collateral, all ABL Secured Parties.
“Junior Security Documents” shall mean with respect to any Junior Secured Party, the Security Documents that secure the Junior Obligations.
“Lien” means, with respect to any asset, (a) any mortgage, charge, deed of trust, deed of hypothec, deed to secure debt, lien, prior claim, pledge, hypothecation, assignment, assignation, debenture, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease, any conditional sale right of retention (retentierecht), privilege (voorrecht), retention of title arrangements (eigendomsvoorbehoud), right of reclamation (recht van reclame) or other title retention agreement, any transfer by way of security or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.
“Lien Priority” means with respect to any Lien of any Representative in the Common Collateral, the order of priority of such Lien specified in Section 2.1.
“Loan Documents” shall mean, collectively, the ABL Documents and the Term Debt Documents.
“Loan Party” means Company and each direct or indirect affiliate or shareholder (or equivalent) of Company or any of its affiliates that is now or hereafter becomes a party to any ABL Document or any Term Debt Document, in each case as a direct obligor or guarantor of, or third party security grantor in respect of, the ABL Obligations or Term Debt Obligations, respectively. All references in this Agreement to any Loan Party shall include such Loan Party as a debtor-in-possession and any receiver, interim receiver, monitor or trustee for such Loan Party in any Insolvency Proceeding.
“Multi Lien Intercreditor Agreement” means that certain intercreditor agreement, dated as of the date hereof, by and among the Super Priority Term Administrative Agent, the Super Priority Term Representative, the Extended Term Administrative Agent, the Extended Term Representative, the New Notes Trustee, the New Term Debt Representative, the Existing USD Notes Trustee, the Existing USD Notes Representative, the Existing EUR Notes Trustee, the Existing EUR Notes Representative, the Company and the other Loan Parties party thereto.
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“New Notes Indenture” has the meaning set forth in the second WHEREAS clause of this Agreement.
“New Notes Trustee” has the meaning set forth in the second WHEREAS clause of this Agreement.
“New Term Debt Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Term Debt Documents in respect of the New Notes Indenture and (b) all penalties, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, damages and other liabilities payable from time to time pursuant to the Term Debt Documents in respect of the New Notes Indenture, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any New Term Debt Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“New Term Debt Representative” has the meaning set forth in the first paragraph of this Agreement.
“New Secured Notes” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Notes Trustee” shall mean each of the New Notes Trustee, the Existing USD Notes Trustee, the Existing EUR Notes Trustee and each additional trustee in respect of Additional Debt pursuant to a Term Debt Agreement from time to time party hereto pursuant to Section 11.5(B).
“Parallel Debt” has the meaning set forth in Section 10.10.
“Patent License” means all agreements granting any right in, to, or under Patents (whether any Loan Party is licensee or licensor thereunder).
“Patents” means all patentable inventions and designs, United States and foreign patents, industrial designs and certificates of invention, and similar industrial property rights, now or hereafter in force, and with respect to any and all of the foregoing: (i) all applications therefor, (ii) all reissues, divisionals, continuations, continuations-in-part, extensions, renewals, and reexaminations thereof, and all amendments thereto, (iii) all rights corresponding thereto throughout the world, (iv) all inventions and improvements described and claimed therein, (v) all rights to sue or otherwise recover for past, present and future infringements or other violations thereof and (vi) all Proceeds of any of the foregoing, including license fees, income, claims, damages, Proceeds of suit, payments and royalties, including rights to payments and royalties arising out of the sale, lease, license, assignment, or other disposition thereof.
“Payment Event of Default” means (a) an Event of Default (as defined in the ABL Agreement) arising under section 8.1 (a) (Failure to Make Payments When Due) of the ABL Agreement; (b) an Event of Default (as defined in the Super Priority Credit Agreement) arising under Section 7.2 of the Super Priority Credit Agreement; (c) an Event of Default (as defined in the Extended Credit Agreement) arising under Section 7.2 of the Extended Credit Agreement; (d) an Event of Default (as defined in the New Notes Indenture) arising under Section 6.01(a)(1) or 6.01(a)(2) of the New Notes Indenture; (e) an Event of Default (as defined in the Existing USD Notes Indenture) arising under Section 6.01(a)(1) or 6.01(a)(2) of the Existing USD Notes Indenture; (f) an Event of Default (as defined in the Existing EUR Notes Indenture)
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arising under Section 6.01(a)(1) or 6.01(a)(2) of the Existing EUR Notes Indenture; and/or (g) any Event of Default arising from any failure to pay any amount when due to any Secured Party under the Debt Documents.
“Person” means any person, individual, sole proprietorship, partnership, joint venture, corporation, limited liability company, unlimited liability company, unincorporated organization, association, institution, entity, party, including any government and any political subdivision, agency or instrumentality thereof.
“Polish Enterprise Pledge” means any Polish law governed registered pledge over movable property and rights (zbiór rzeczy i praw) granted by a Loan Party incorporated in Poland in favor of a Representative.
“Post-Petition Interest” means any interest or entitlement to fees or expenses or other charges that accrues after the commencement of any Insolvency Proceeding (or would accrue but for the commencement of an Insolvency Proceeding), whether or not allowed or allowable in any such Insolvency Proceeding.
“PPSA” means the Personal Property Security Act (Ontario), including the regulations thereto and any similar legislation in any other province or territory of Canada (including the Civil Code of Québec) in effect from time to time in such other jurisdiction the laws of which are required by such legislation to be applied in connection with the issue, perfection, enforcement, validity or effect of security interests.
“Priority Collateral” means the ABL Priority Collateral or the Term Debt Priority Collateral.
“Proceeds” means (a) all “proceeds,” as defined in Article 9 of the Uniform Commercial Code (or, with respect to Foreign Collateral, similar or equivalent foreign laws), with respect to the Common Collateral, and (b) whatever is recoverable or recovered when any Common Collateral is sold, exchanged, collected, or disposed of, whether voluntarily or involuntarily (including any insurance proceeds of any insurance policy), and including in an Insolvency Proceeding (including, for the avoidance of doubt, any distribution of equity or debt securities or other instruments or additional or replacement collateral provided during any Insolvency Proceeding on account of secured claims).
“Real Property” means any right, title or interest in and to real property, including any fee interest, leasehold interest, easement, or license and any other right to use or occupy real property, including any right arising by contract.
“Related Parties” means, with respect to any specified Person, such Person’s affiliates and the respective directors, officers, partners, members, trustees, employees, agents, administrators, managers, representatives and advisors of such Person and such Person’s affiliates.
“Replacement ABL Agreement” has the meaning set forth in the definition of “ABL Agreement.”
“Replacement Term Debt Agreement” has the meaning set forth in the definition of “Term Debt Agreement.”
“Representative” shall mean each ABL Representative and each Term Debt Representative.
“Secured Obligations” means, collectively, the ABL Obligations and the Term Debt Obligations.
“Secured Parties” means the ABL Secured Parties and the Term Debt Secured Parties.
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“Security Documents” means, collectively, the ABL Security Documents and the Term Debt Security Documents.
“Senior Collateral” shall mean with respect to any Senior Secured Party, any Collateral on which it has a Senior Lien.
“Senior Documents” shall mean, (a) with respect to any Senior Obligations that are ABL Obligations, the ABL Documents or any other document, instrument or certificate evidencing or delivered in connection with such Senior Obligation, (b) with respect to any Senior Obligations that are Term Debt Obligations, the Term Debt Documents, or any other document, instrument or certificate evidencing or delivered in connection with such Senior Obligation.
“Senior Liens” shall mean (a) with respect to the ABL Priority Collateral, all Liens securing the ABL Obligations and (b) with respect to the Term Debt Priority Collateral, all Liens securing the Term Debt Obligations.
“Senior Obligations” shall mean (a) with respect to any ABL Priority Collateral, all ABL Obligations and (b) with respect to any Term Debt Priority Collateral, all Term Debt Obligations.
“Senior Obligations Payment Date” shall mean (a) with respect to ABL Obligations, the ABL Obligations Payment Date and (b) with respect to any Term Debt Obligations, the Term Debt Obligations Payment Date.
“Senior Representative” shall mean (a) with respect to any ABL Obligations or any ABL Priority Collateral, each ABL Representative and (b) with respect to any Term Debt Obligations or any Term Debt Priority Collateral, each Term Debt Representative.
“Senior Secured Parties” shall mean (a) with respect to the ABL Priority Collateral, all ABL Secured Parties and (b) with respect to the Term Debt Priority Collateral, all Term Debt Secured Parties.
“Senior Security Documents” shall mean with respect to any Senior Secured Party, the Security Documents that secure the Senior Obligations.
“Spanish Civil Code” means the Spanish Civil Code published by virtue of the Royal Decree of 24 July 1889 (Real decreto de 24 de julio de 1889 por el que se publica el Código Civil), as amended from time to time.
“Spanish Insolvency Law” means the Royal Legislative Decree 1/2020, of 5 May, approving the Consolidated Text of the Spanish Insolvency Law (Real Decreto-Legislativo 1/2020, de 5 de mayo, por el que se aprueba el Texto Refundido de la Ley Concursal), as amended from time to time and, in particular but not limited to, pursuant to the Spanish Law 16/2022, of 5 September, amending the consolidated text of the Spanish Insolvency Law (Ley 16/2022, de 5 de septiembre, de reforma del texto refundido de la Ley Concursal).
“Spanish Loan Parties” means, collectively, each Loan Party that is incorporated under the laws of
Spain.
“Super Priority Credit Agreement” has the meaning set forth in the second WHEREAS clause of this Agreement.
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“Super Priority Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Term Debt Documents in respect of the Super Priority Credit Agreement and (b) all penalties, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, damages and other liabilities payable from time to time pursuant to the Term Debt Documents in respect of the Super Priority Credit Agreement, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Super Priority Obligation (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Super Priority Term Administrative Agent” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Super Priority Term Representative” has the meaning set forth in the first paragraph of this Agreement.
“Swap Obligations” means, with respect to any Loan Party, any obligations of such Loan Party or its subsidiaries owed to any ABL Secured Party (or any of its affiliates) in respect of any (i) any interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedging agreement or other similar agreement or arrangement, each of which is for the purpose of hedging the interest rate exposure associated with Company’s and its subsidiaries’ operations and not for speculative purposes, (ii) any foreign exchange contract, currency swap agreement, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the foreign currency risk associated with the Company’s and its subsidiaries’ operations and not for speculative purposes, (iii) any commodity or fuel exchange contract, futures contract, option contract, synthetic cap or other similar agreement or arrangement, each of which is for the purpose of hedging the Company’s and its subsidiaries’ exposure to fluctuations in prices for commodities or fuel and not for speculative purposes or
(iv) any similar transaction or any combination of these transactions.
“Swedish Corporate Mortgage” means any Swedish law governed corporate mortgage granted by a Loan Party incorporated in Sweden in favor of a Representative.
“Term Administrative Agent” shall mean each of the Super Priority Term Administrative Agent, the Existing Term Administrative Agent, the Extended Term Administrative Agent and each additional administrative agent in respect of Additional Debt pursuant to a Term Debt Agreement from time to time party hereto pursuant to Section 11.5(B).
“Term Credit Agreements” has the meaning set forth in the second WHEREAS clause of this Agreement.
“Term Debt Agreement” means the collective reference to (a) the Indentures, (b) the Term Credit Agreements, (c) any Additional Term Debt Agreement and (d) any other credit agreement, loan agreement, note agreement, promissory note, indenture or other agreement or instrument evidencing or governing the terms of any indebtedness or other financial accommodation that has been incurred to extend, replace, refinance or refund in whole or in part the indebtedness and other obligations outstanding under any Indenture, any Credit Agreement, any Additional Term Debt Agreement or any other agreement or
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instrument referred to in this clause (d) unless such agreement or instrument expressly provides that it is not intended to be and is not a Term Debt Agreement hereunder (a “Replacement Term Debt Agreement”). Any reference to the Term Debt Agreement hereunder shall be deemed a reference to any Term Debt Agreement then extant.
“Term Debt Collateral” means all assets, whether now owned or hereafter acquired by any Loan Party, in which a Lien is granted or purported to be granted to any Term Debt Secured Party as security for any Term Debt Obligation.
“Term Debt Creditors” means, collectively, the “Holder”, the “Lender” and the “Secured Parties”, in each case, as defined in the Term Debt Agreement or Term Debt Security Documents, as applicable, or any Persons that are designated under the Term Debt Agreement as the “Term Debt Creditors” for purposes under this Agreement.
“Term Debt DIP Financing” has the meaning set forth in Section 5.2(b).
“Term Debt Documents” means each Term Debt Agreement, each Term Debt Security Document, each Term Debt Guarantee and each other “Notes Document” or “Loan Document” (in each case, as defined in the applicable Term Debt Agreement).
“Term Debt Guarantee” means any guarantee by any Loan Party of any or all of the Term Debt Obligations.
“Term Debt Lien” means any Lien created by the Term Debt Security Documents.
“Term Debt Obligations” means (a) all principal of and interest (including without limitation any Post-Petition Interest) and premium (if any) on all indebtedness under the Term Debt Documents or any Term Debt DIP Financing by the Term Debt Creditors, and (b) all penalties, premiums (including prepayment premiums and make-whole premiums), fees, indemnifications, reimbursements, damages and other liabilities payable from time to time pursuant to the Term Debt Documents, in each case whether or not allowed or allowable in an Insolvency Proceeding. To the extent any payment with respect to any Term Debt Obligations (whether by or on behalf of any Loan Party, as Proceeds of security, enforcement of any right of setoff or otherwise) is declared to be a fraudulent conveyance or a preference in any respect, set aside or required to be paid to a debtor in possession, any ABL Secured Party, receiver or similar Person, then the obligation or part thereof originally intended to be satisfied shall, for the purposes of this Agreement and the rights and obligations of the ABL Secured Parties and the Term Debt Secured Parties, be deemed to be reinstated and outstanding as if such payment had not occurred.
“Term Debt Obligations Payment Date” means the first date on which (a) all Term Debt Obligations (other than those that constitute Unasserted Contingent Obligations) have been indefeasibly paid in cash in full, (b) all commitments to extend credit under the Term Debt Documents have been terminated, and (c) so long as the ABL Obligations Payment Date shall not have occurred, each Term Debt Representative has delivered a written notice to the Controlling ABL Representative stating that the events described in clauses
(a) and (b) have occurred to the satisfaction of the Term Debt Secured Parties.
“Term Debt Priority Collateral” means all Term Debt Collateral other than ABL Priority Collateral; provided, however, “Term Debt Priority Collateral” shall not include Proceeds from the disposition of any Term Debt Priority Collateral permitted by the Term Debt Agreement to the extent such Proceeds are not required to be applied to the mandatory prepayment of the Term Debt Obligations pursuant to the Term
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Debt Documents, unless such Proceeds arise from a disposition of Term Debt Priority Collateral resulting from Enforcement Action taken by the Term Debt Secured Parties permitted by this Agreement.
“Term Debt Representative” shall mean each of the Super Priority Term Representative, the Extended Term Representative, the New Term Debt Representative, the Existing Term Representative, the Existing USD Notes Representative, the Existing EUR Notes Representative, the European Collateral Agent and each additional representative in respect of Additional Debt pursuant to a Term Debt Agreement from time to time party hereto pursuant to Section 11.5(B).
“Term Debt Secured Parties” means each Term Debt Representative, each Notes Trustee, each Term Administrative Agent, the Term Debt Creditors, any other holders of the Term Debt Obligations.
“Term Debt Security Documents” means the “Security Documents” as defined in the Term Debt Agreements and any documents that are designated under the Term Debt Agreement as “Term Debt Security Documents” for purposes of this Agreement, including any Common Security Documents.
“Trade Secret Licenses” means any and all agreements granting any right in or to Trade Secrets (whether a Loan Party is licensee or licensor thereunder).
“Trade Secrets” means all trade secrets and all other confidential or proprietary information and know-how, whether or not reduced to a writing or other tangible form, now or hereafter in force, owned or used in, or contemplated at any time for use in, the business of any Loan Party, including with respect to any and all of the foregoing: (i) all documents and things embodying, incorporating, or referring in any way thereto, (ii) all rights to sue for past, present and future misappropriation or other violations thereof,
(iii) all Proceeds of any of the foregoing, including license fees, income, claims, damages, Proceeds of suit, payments and royalties, including rights to payments and royalties arising out of the sale, lease, license, assignment, or other dispositions thereof, and (iv) all rights corresponding to any of the foregoing throughout the world.
“Trademark Licenses” means any and all agreements granting any right in or to Trademarks (whether a Loan Party is licensee or licensor thereunder).
“Trademarks” means all United States, state and foreign trademarks, service marks, certification marks, collective marks, trade names, corporate names, d/b/as, business names, fictitious business names, Internet domain names, trade styles, logos, other source or business identifiers, designs and general intangibles of a like nature, rights of publicity and privacy pertaining to the names, likeness, signature and biographical data of natural persons, now or hereafter in force, and, with respect to any and all of the foregoing: (i) all registrations and applications therefor, all extensions and renewals thereof, and all common law rights related thereto, (ii) the goodwill of the business connected with the use thereof and symbolized thereby, (iii) all rights corresponding thereto throughout the world, (iv) all rights to sue for past, present and future infringement or dilution thereof or for any injury to goodwill and (v) all Proceeds of any of the foregoing, including license fees, income, claims, damages, Proceeds of suit, payments and royalties, including rights to payments and royalties arising out of the sale, lease, license assignment or other disposition thereof.
“UK Administrator” shall mean an administrator under and appointed (or, as the context may require, to be appointed) for the purposes of Schedule B1 of the UK Insolvency Act 1986 or any applicable special administration regime.
“UK Loan Parties” shall mean any Loan Parties incorporated in England and Wales.
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“Unasserted Contingent Obligations” shall mean, at any time, ABL Obligations or Term Debt Obligations, as applicable, for taxes, costs, indemnifications, reimbursements, damages and other liabilities (excluding (a) the principal of, and interest and premium (if any) on, and fees and expenses relating to, any ABL Obligation or Term Debt Obligation, as applicable, and (b) with respect to ABL Obligations contingent reimbursement obligations in respect of amounts that may be drawn under outstanding letters of credit) in respect of which no assertion of liability (whether oral or written) or no claim or demand for payment (whether oral or written) has been made (or, in the case of ABL Obligations or Term Debt Obligations, as applicable, for indemnification, no notice for indemnification has been issued by the indemnitee) at such time.
“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the applicable jurisdiction.
1.17Rules of Construction. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.
1.18Certain Spanish Matters. Where it relates to a person incorporated in Spain, and unless the contrary intention appears, a reference to: (i) “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Spanish Insolvency Law, including a declaración de concurso con independecia de su carácter necesario o voluntario as well as any solicitud de inicio del procedimiento de concurso voluntario, the request of declaration of insolvency by a third party (solicitud de concurso por acreedores) (including without limitation, any petition filed under to a competent court pursuant to articles 585 et seq., and 635 et seq. of the Spanish Insolvency Law, petition to appoint a restructuring expert pursuant to articles 672 et seq., and its solicitud de inicio de procedimiento de concurso, auto de declaración de concurso, convenio judicial o extrajudicial con acreedores and transacción extrajudicial). A person being unable to pay its debts includes that person being in a state of insolvencia or in concurso according to Spanish Insolvency Law; (ii) “financial assistance” means (a) in respect of a Spanish Loan Party incorporated as a Sociedad Anónima, financial assistance under Article 150 of the Spanish Companies Law; and (b) in respect of a Spanish Loan Party incorporated as a Sociedad de Responsabilidad Limitada, financial assistance under Article 143 of the Spanish Companies Law; (iii) “winding up” or “dissolution” includes, without limitation, disolución or liquidación, or any other similar proceedings and shall be used to those circumstances as regulated under Spanish law from time to time;
(iv) a “composition” or similar arrangement with any creditor includes, without limitation, a convenio de acreedores or plan de reestructuración to be judicially sanctioned for the purposes of the Spanish Insolvency Law or any agreement under Title II or Title III of the Second Book of the Spanish Insolvency Law; (v) a “security” includes any mortgage (hipoteca), pledge (prenda) (with or without transfer of possession), financial collateral agreement (garantía financiera pignoraticia) and, in general, any in rem
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security right governed by Spanish law; and (vi) a “guarantee” includes any accessory personal guarantee (fianza), performance bond (aval), joint and several guarantee (garantía solidaria) and first demand guarantee (garantía a primer requerimiento).
1.19Quebec Matters. For purposes of any Collateral located in the Province of Quebec or charged by any deed of hypothec (or any other ABL Document or Term Debt Document) and for all other purposes pursuant to which the interpretation or construction of an ABL Document or Term Debt Document may be subject to the laws of the Province of Quebec or a court or tribunal exercising jurisdiction in the Province of Quebec, (q) “personal property” shall be deemed to include “movable property”, (r) “real property” shall be deemed to include “immovable property”, (s) “tangible property” shall be deemed to include “corporeal property”, (t) “intangible property” shall be deemed to include “incorporeal property”,
(u) “security interest” and “mortgage” shall be deemed to include a “hypothec”, (v) all references to filing, registering or recording under the Uniform Commercial Code or the PPSA shall be deemed to include publication under the Civil Code of Quebec, (w) all references to “perfection” of or “perfected” Liens shall be deemed to include a reference to the “opposability” of such Liens to third parties, (x) any “right of offset”, “right of setoff” or similar expression shall be deemed to include a “right of compensation”, (y) “goods” shall be deemed to include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, and (z) an “agent” shall be deemed to include a “mandatary”.
1.20Swedish Matters. Notwithstanding and overriding any other provision of this Agreement and any other Debt Document and/or any exhibit or schedule thereto: (a) any obligation for any entity incorporated in Sweden to act as trustee shall be an obligation to act as agent and the obligation to hold assets on trust shall be an obligation not to hold such assets on trust but to hold such assets as agent, (b) for the avoidance of doubt, any transfer by novation and/or assignment, shall, as regards security created by or pursuant to a Security Document governed by the laws of Sweden, assign a proportionate part of the security interests granted under that Security Document together with a proportional part of the security interest in that Security Document, (c) any security granted under a Security Document governed by the laws of Sweden will be granted to the secured parties represented by the European Collateral Agent, (d) a “compromise” or “composition” with any creditor includes (i) any write-down of debt or other debt rescheduling following from any procedure of ‘företagsrekonstruktion’ under the Swedish company reorganisation act (Sw. Lag om företagsrekonstruktion (2022:964)) (the “Swedish Company Reorganisation Act”), or (ii) any write-down of debt in bankruptcy (Sw. ackord i konkurs) under the Swedish bankruptcy act (Sw. Konkurslag (1987:672)) (the “Swedish Bankruptcy Act”), (e) a “receiver”, “trustee” or “liquidator” includes (i) ‘rekonstruktör’ under the Swedish Company Reorganisation Act, (ii) ‘konkursförvaltare’ under the Swedish Bankruptcy Act, or (iii) ‘likvidator’ under the Swedish Companies Act, (f) a “merger”, “consolidation” or “amalgamation” includes any ‘fusion’ implemented in accordance with Chapter 23 of the Swedish Companies Act and a “demerger” includes any 'delning' implemented in accordance with Chapter 24 of the Swedish Companies Act, (g) a “winding-up”, “liquidation” or “dissolution” includes ‘frivillig likvidation’ or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, a “bankruptcy” includes a ‘konkurs’ under the Swedish Bankruptcy Act and a “reorganisation” includes a ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act, (h) “gross negligence” means ‘grov vårdslöshet’ under Swedish law, (i) a “guarantee” includes any ‘garanti’ under Swedish law which is independent from the debt of any other person to which it relates and any ‘borgen’ under Swedish law which is accessory to or dependant on the debt of any other person to which it relates, (j) an insolvency includes such entity being subject to ‘konkurs’ under the Swedish Bankruptcy Act, ‘företagsrekonstruktion’ under the Swedish Company Reorganisation Act or ‘tvångslikvidation’ under Chapter 25 of the Swedish Companies Act, (k) in relation to this Agreement and any other Security Document, any winding-up, insolvency, bankruptcy proceeding or similar arrangement involving an entity incorporated in Sweden will always be subject to Swedish law and in particular to but not limited to the procedure set forth in the Swedish Bankruptcy Act, the Swedish Company Reorganisation Act and the
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Swedish Companies Act, (l) notwithstanding any other provisions in this Agreement and/or the other Debt Documents, the release of any perfected Liens (or any Liens purported to be perfected) created by or pursuant to a Security Document governed by the laws of Sweden will always be subject to the prior written consent of the European Collateral Agent (acting in its sole discretion but in accordance with the applicable Security Document governed by the laws of Sweden and Debt Document). Each Secured Party authorizes and directs the European Collateral Agent to release Liens created by or pursuant to any Security Document governed by the laws of Sweden as provided in the relevant provision of the applicable Debt Document governing releases of collateral (but in accordance with the applicable Security Document governed by the laws of Sweden and Debt Document) without notification or further reference to the Secured Parties. This provision supersedes any conflicting provision in this Agreement and/or the other Debt Documents.
1.21Swedish limitation language. In relation to any Loan Party incorporated in Sweden, its obligations and liabilities under this Agreement shall be limited, if (and only if) required by the mandatory provisions of the Swedish Companies Act (Sw. Aktiebolagslag (2005:551)) in force from time to time regulating unlawful distribution of assets and transfer of value (Sw. värdeöverföring) pursuant to Chapter 17, Sections 1 to 4 of the Swedish Companies Act and financial assistance and other prohibited loans, prohibited security and prohibited guarantees pursuant to Chapter 21, Sections 1 to 3 and 5, and it is understood that the obligations and liabilities of each Loan Party incorporated in Sweden under this Agreement only applies to the extent permitted by the above mentioned provisions of the Swedish Companies Act.
1.22French terms. In this Agreement, where it relates to the French Loan Party: (a) “gross negligence” means “faute lourde”; (b) a “guarantee” means any type of “sûreté personnelle”; (c) “merger” includes any fusion implemented in accordance with articles L. 236-1 to L. 236-24 of the French Commercial Code; (d) a “security interest” includes any type of security (sûreté réelle) and transfer by way of security; (e) a “transfer” includes any means of transfer of rights and/or obligations under French law;
(f) “trustee, fiduciary and fiduciary duty” has in each case the meaning given to such term under any applicable law; (g) “willful misconduct” means “dol”; (h) a person being “unable to pay its debts” refers to that person being in a state of “cessation des paiements” as defined in article L. 631-1 of the French Commercial Code; (i) a “suspension of payments,” a “moratorium of any indebtedness,” a “winding-up,” “dissolution,” “administration,” “reorganisation” (by way of voluntary arrangement, scheme of arrangement or otherwise) or “insolvency” or similar laws relating to or limiting creditors’ rights generally refer to any reorganisation in the context of a mandat ad hoc or of a procédure de conciliation, any judicial reorganisation “redressement judiciaire,” any judicial liquidation “liquidation judiciaire,” any safeguard “sauvegarde,” any accelerated safeguard “sauvegarde accélérée” or any collective procedure “procédure collective” under Book VI (Livre Sixième) of the French Commercial Code; (j) a “composition” refers to a procédure de conciliation or a mandat ad hoc under Book VI (Livre Sixième) of the French Commercial Code; (k) a “liquidator,” “receiver,” “administrator,” “compulsory manager”, “examiner”, “monitor”, “sequestrator”, “custodian”, “compulsory interim manager” or similar officer refers to, any “mandataire ad hoc,” “administrateur judiciaire,” “administrateur provisoire,” “conciliateur” or “mandataire liquidateur” or similar officer; and (l) a reference to “financial assistance” means unlawful financial assistance within the meaning of article L. 225-216 of the French Commercial Code.
1.23Certain Italian Matters. Where it relates to a person incorporated in Italy, and unless the contrary intention appears, a reference to: (i) “insolvency” or “insolvency proceeding” and any step or proceeding relating to it has the meaning attributed to them under the Italian Bankrupty Law or the Italian Crisis and Insolvency Code as applicable, including any procedura concorsuale (including fallimento, concordato fallimentare, concordato preventivo pursuant to article 160 et seq. of the Italian Bankruptcy Law or article 84 et seq. of the Italian Crisis and Insolvency Code, accordo di ristrutturazione dei debiti pursuant to article 182-bis of the Italian Bankruptcy Law or article 57 of the Italian Crisis and Insolvency
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Code, accordo di ristrutturazione con intermediari finanziari or a convenzione di moratoria pursuant to article 182-septies of the Italian Bankruptcy Law or article 61 and 62 of the Italian Crisis and Insolvency Code, piano di risanamento pursuant to article 67, paragraph 3, letter (d) of the Italian Bankruptcy Law or article 56 of the Italian Crisis and Insolvency Code, liquidazione coatta amministrativa, amministrazione straordinaria, amministrazione straordinaria delle grandi imprese in stato di insolvenza, domanda di "pre- concordato" pursuant to article 161, paragraph 6 of the Italian Bankruptcy Law or article 44 of the Italian Crisis and Insolvency Code, any procedura di risanamento or procedura di liquidazione pursuant to Legislative Decree No. 170 of 21 May 2004 and cessione dei beni ai creditori pursuant to Article 1977 of the Italian Civil Code), liquidation procedure pursuant to articles 56, 56 bis and/or paragraph 3 bis and/or 6 bis of article 57 of the Legislative Decree No. 58 of 24 February 1998, as amended and supplemented from time to time, and any other proceedings or legal concepts similar to the foregoing, (iv) a “security” includes any mortgage (ipoteca), pledge (pegno) and assingment by way of security (cessione in garanzia) (with or without transfer of possession), financial collateral agreement (conratto di garanzia finanziaria) and, in general, any in rem security right governed by Italian law; and (vi) a “guarantee” includes any accessory personal guarantee (fideiussione) and first demand guarantee (garanzía a prima rihiesta).
SECTION 2. Lien Priority.
2.1Lien Subordination. Notwithstanding the date, manner or order of grant, attachment or perfection of any Junior Lien in respect of any Collateral or of any Senior Lien in respect of any Collateral and notwithstanding any provision of the UCC, any applicable law, any Security Document, any alleged or actual defect or deficiency in any of the foregoing or any other circumstance whatsoever, each Junior Representative, on behalf of each Junior Secured Party, in respect of such Collateral hereby agrees that:
(a)any Senior Lien in respect of such Collateral, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be and shall remain senior and prior to any Junior Lien in respect of such Collateral (whether or not such Senior Lien is subordinated to any Lien securing any other obligation); and
(b)any Junior Lien in respect of such Collateral, regardless of how acquired, whether by grant, statute, operation of law, subrogation or otherwise, shall be junior and subordinate in all respects to any Senior Lien in respect of such Collateral.
For purposes of applicable law in the Province of Quebec, each Junior Representative, on behalf of each Junior Secured Party and each Senior Representative, on behalf of each Senior Secured Party, hereby cede unto each other priority and preference of rank of their respective Liens on the Collateral pursuant to any ABL Document or any Term Debt Document as required in order to give effect to the Lien subordination set out in this Section 2.1.
For the purposes of determining what is a Senior Lien and what is a Junior Lien with respect to any Common Lien, such Common Lien shall be deemed to be two separate and distinct grants of Liens securing the ABL Obligations, on the one hand, and the Term Debt Obligations, on the other hand, for all purposes of this Agreement.
2.1Prohibition on Contesting Liens. In respect of any Collateral, each Junior Representative, on behalf of each Junior Secured Party, in respect of such Collateral agrees that it shall not, and hereby waives any right to:
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(a)contest, or support any other Person in contesting, in any proceeding (including any Insolvency Proceeding), the priority, validity or enforceability of any Senior Lien on such Collateral; or
(b)demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal, valuation or similar right which it may have in respect of such Collateral or the Senior Liens on such Collateral, except to the extent that such rights are expressly granted in this Agreement.
2.2Nature of Obligations. Each Term Debt Representative on behalf of itself and the other Term Debt Secured Parties acknowledges that a portion of the ABL Obligations represents debt that is revolving in nature and that the amount thereof that may be outstanding at any time or from time to time may be increased, reduced or repaid and subsequently reborrowed, and that the terms of the ABL Obligations or any ABL Agreement may be waived, modified, extended, amended, restated or supplemented in accordance with the terms thereof from time to time, and that the aggregate amount of the ABL Obligations may be increased, replaced or refinanced, in each event, without notice to or consent by the Term Debt Secured Parties and without affecting the provisions hereof. Each ABL Representative on behalf of itself and the other ABL Secured Parties acknowledges that Term Debt Obligations may be replaced or refinanced and the amount of any Note Obligations may be increased, reduced or repaid, and any Note Document or any provision thereof may be waived, modified, extended, amended, restated or supplemented in accordance with the terms thereof from time to time, and the aggregate amount of the Note Obligations may be increased, replaced or refinanced, in each event, without notice to or consent by the ABL Secured Parties and without affecting the provisions hereof. The Lien Priorities provided in Section
2.1 shall not be altered or otherwise affected by any such amendment, modification, supplement, extension, repayment, reborrowing, increase, replacement, renewal, restatement or refinancing of either the ABL Obligations or the Term Debt Obligations, or any portion thereof. The provisions of this Section 2.3 are not intended to constitute a waiver of any restrictions (i) contained in the ABL Agreement applicable to the amount or terms of the Term Debt Obligations or (ii) contained in the Term Debt Agreement applicable to the amount or terms of the ABL Obligations.
2.3No New Liens. (a) Until the ABL Obligations Payment Date, no Term Debt Secured Party shall acquire or hold any Lien on any assets of any Loan Party securing any Term Debt Obligation which assets are not also subject to the Lien of each ABL Representative under the ABL Documents, and subject to the Lien Priority set forth herein (it being understood that any Liens granted by any Loan Party organized or incorporated in Europe (other than France) shall only be held by the European Collateral Agent for the benefit of all Secured Parties, provided that any ABL Representative may agree in writing not to acquire or hold (or that an ABL Secured Party not be secured by) a Lien on a particular asset securing any Term Debt Obligations in its sole discretion). If any Term Debt Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any assets of any Loan Party securing any Term Debt Obligation which assets are not also subject to the Lien of each ABL Representative under the ABL Documents, and subject to the Lien Priority set forth herein, then the applicable Term Debt Representative (or the relevant Term Debt Secured Party) shall to the extent possible under applicable law, without the need for any further consent of any other Term Debt Secured Party and notwithstanding anything to the contrary in any other Term Debt Document be deemed to also hold and have held such lien for the benefit of each ABL Representative as security for the ABL Obligations (subject to the Lien Priority and other terms hereof) and shall promptly notify each ABL Representative in writing of the existence of such Lien.
(b) Until the Term Debt Obligations Payment Date, no ABL Secured Party shall acquire or hold any Lien on any assets of any Loan Party securing any ABL Obligation which assets are not also subject to the Lien of each applicable Term Debt Representative (subject to the last sentence of this Section 2.4(b))
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under the Term Debt Documents, and subject to the Lien Priority set forth herein (it being understood that any Liens granted by any Loan Party organized or incorporated in Europe (other than France) shall only be held by the European Collateral Agent for the benefit of all Secured Parties, provided that any Term Debt Representative may agree in writing not to acquire or hold (or that a Term Debt Secured Party not be secured by) a Lien on a particular asset securing any ABL Obligations in its sole discretion). If any ABL Secured Party shall (nonetheless and in breach hereof) acquire or hold any Lien on any assets of any Loan Party securing any ABL Obligation which assets are not also subject to the Lien of each applicable Term Debt Representative (subject to the last sentence of this Section 2.4(b)) under the Term Debt Documents, and subject to the Lien Priority set forth herein, then the applicable ABL Representative (or the relevant ABL Secured Party) shall to the extent possible under applicable law, without the need for any further consent of any other ABL Secured Party and notwithstanding anything to the contrary in any other ABL Document be deemed to also hold and have held such lien for the benefit of each such Term Debt Representative as security for the Term Debt Obligations (subject to the Lien Priority and other terms hereof) and shall promptly notify each such Term Debt Representative in writing of the existence of such Lien. Notwithstanding the foregoing, it is understood that different series of Term Debt Obligations may be secured by different collateral, and this Section 2.4(b) shall not apply with respect to any series of Term Debt Obligations that is, by its terms, intended to be secured by less than all Collateral.
2.4Separate Grants of Security and Separate Classification. Each Secured Party acknowledges and agrees that (i) the grants of Liens pursuant to the ABL Security Documents and the Term Debt Security Documents constitute two separate and distinct grants of Liens (and, without limiting the foregoing, the grants of Common Liens shall be deemed to be two separate and distinct grants of Liens securing the ABL Obligations, on the one hand, and the Term Debt Obligations, on the other hand, for all purposes of this Agreement) and (ii) because of, among other things, their differing rights in the Common Collateral, the Term Debt Obligations are fundamentally different from the ABL Obligations and should be separately classified in any plan of reorganization, plan or arrangement, plan of liquidation or similar proposal or plan proposed or adopted in an Insolvency Proceeding. To further effectuate the intent of the parties as provided in the immediately preceding sentence, if it is held that claims in respect of the ABL Obligations and the Term Debt Obligations constitute claims in the same class (rather than separate classes of secured claims), then the ABL Secured Parties and the Term Debt Secured Parties hereby acknowledge and agree that all distributions shall be made as if there were separate classes of ABL Obligations claims and Term Debt Obligations claims against the Loan Parties (with the effect being that, to the extent that the aggregate value of the ABL Priority Collateral or Term Debt Priority Collateral is sufficient (for this purpose ignoring all claims held by the other Secured Parties), the ABL Secured Parties or the Term Debt Secured Parties, respectively, shall be entitled to receive, in addition to amounts distributed to them in respect of principal, pre-petition interest and other claims, all amounts owing in respect of Post-Petition Interest that is available from each pool of Priority Collateral for each of the ABL Secured Parties and the Term Debt Secured Parties, respectively, before any distribution is made in respect of the claims held by the other Secured Parties, with the other Secured Parties hereby acknowledging and agreeing to turn over to the respective other Secured Parties amounts otherwise received or receivable by them to the extent necessary to effectuate the intent of this sentence, even if such turnover has the effect of reducing the aggregate recoveries. Each Secured Party further acknowledges and agrees that, if any Liens are held to be invalid, illegal or unenforceable in any jurisdiction with respect to any series of Secured Obligations, such series shall bear the risk of such invalidity, illegality or unenforceability and not any other series of Secured Obligations.
2.5Agreements Regarding Actions to Perfect Liens. (a) Each ABL Representative agrees on behalf of itself and the other ABL Secured Parties that all mortgages, deeds of trust, deeds and similar instruments (collectively, “mortgages”) now or thereafter filed against Real Property located in the United States in favor of or for the benefit of such ABL Representative shall contain the following notation: “The lien created by this mortgage on the property described herein is junior and subordinate to the lien on such
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property created by any mortgage, deed of trust or similar instrument now or hereafter granted any Term Debt Representative (as defined in the ABL Intercreditor Agreement dated as of December 29, 2022, as amended from time to time (the “ABL Intercreditor Agreement”), in accordance with the provisions of the ABL Intercreditor Agreement.”
(b)Each ABL Representative and each Term Debt Representative hereby acknowledges that, to the extent that it holds, or a third party holds on its behalf, physical possession of or “control” (as defined in the Uniform Commercial Code or, with respect to Foreign Collateral, similar or equivalent foreign laws) over, or is otherwise noted as a lienholder on any certificate of title constituting, any Common Collateral, each ABL Representative and each Term Debt Representative, as applicable, agrees to hold or control such Common Collateral as bailee and as non-fiduciary agent for each Term Debt Representatives and/or each ABL Representative, as applicable (such bailment and agency being intended, among other things, to satisfy the requirements of Sections 9-313(c), 9-104, 9-105, 9-106 and 9-107 of the Uniform Commercial Code and applicable certificate of title laws), solely for the purpose of perfecting the security interest (including any junior priority security interest) granted under the Term Debt Security Documents or the ABL Security Documents, as applicable, subject to the terms and conditions of this Section 2.6 (any ABL Representative or any Term Debt Representative in such capacity, the “Control Representative”). Nothing in this Section
2.6 shall be construed to impose any duty on any ABL Representative or any Term Debt Representative (or any third party acting on either such Person’s behalf) or create any fiduciary relationship with respect to such Common Collateral or provide any Term Debt Representative, any other Term Debt Secured Party, any ABL Representative or any other ABL Secured Party, as applicable, with any rights with respect to such Common Collateral beyond those specified in this Agreement, the ABL Security Documents and the Term Debt Security Documents, as applicable, provided that subsequent to the occurrence of the ABL Obligations Payment Date (so long as the Term Debt Obligations Payment Date shall not have occurred), each ABL Representative shall (i) deliver to the Controlling Term Debt Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession together with any necessary endorsements to the extent required by the Term Debt Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs; provided, further, that subsequent to the occurrence of the Term Debt Obligations Payment Date (so long as the ABL Obligations Payment Date shall not have occurred), each Term Debt Representative shall (i) deliver to the Controlling ABL Representative, at the Loan Parties’ sole cost and expense, the Common Collateral in its possession together with any necessary endorsements to the extent required by the ABL Documents or (ii) direct and deliver such Common Collateral as a court of competent jurisdiction otherwise directs. The provisions of this Agreement are intended solely to govern the respective Lien priorities as between the ABL Secured Parties and the Term Debt Secured Parties and shall not impose on the ABL Secured Parties or the Term Debt Secured Parties any obligations in respect of the disposition of any Common Collateral (or any proceeds thereof) that would conflict with prior perfected Liens or any claims thereon in favor of any other Person that is not a Secured Party.
(c)[reserved].
(d)Until the Term Debt Obligations Payment Date, each ABL Representative agrees that, to the extent it is in possession of any Common Collateral constituting Term Debt Priority Collateral, promptly upon the request of the Controlling Term Debt Representative at any time prior to the Term Debt Obligations Payment Date, such ABL Representative shall deliver to the applicable Term Debt Representative any such Term Debt Priority Collateral held by it, and shall use commercially reasonable efforts to cause each ABL Creditor known to it to be holding such Term Debt Priority Collateral to deliver the same to the applicable Term Debt Representative, together with any necessary endorsements without warranty or representation of any kind (or otherwise allow the applicable Term Debt Representative to obtain control of such Term Debt Priority Collateral).
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(e)Until the ABL Obligations Payment Date, each Term Debt Representative agrees that, to the extent it is in possession of any Common Collateral constituting ABL Priority Collateral, promptly upon the request of the Controlling ABL Representative at any time prior to the ABL Obligations Payment Date, such Term Debt Representative shall deliver to the applicable ABL Representative any such ABL Priority Collateral held by it, and shall use commercially reasonable efforts to cause each Term Debt Creditor known to it to be holding such ABL Priority Collateral to deliver the same to the applicable ABL Representative, together with any necessary endorsements without warranty or representation of any kind (or otherwise allow the applicable ABL Representative to obtain control of such ABL Priority Collateral).
(f)Each ABL Representative shall have no obligation whatsoever to any Term Debt Representatives or any Term Debt Creditor to ensure that any Common Collateral is genuine or owned by any Grantor or to preserve rights or benefits of any person except as expressly set forth in this Section 2.6. The duties or responsibilities of each ABL Representative under this Section 2.6 shall be limited solely to holding or controlling the Common Collateral as bailee and non-fiduciary agent in accordance with this Section 2.6 and delivering the Common Collateral upon the ABL Obligations Payment Date as provided in this Section 2.6. The Term Debt Representatives shall have no obligation whatsoever to any ABL Representative or any ABL Creditor to ensure that the Common Collateral is genuine or owned by any Grantor or to preserve rights or benefits of any person except as expressly set forth in this Section 2.6. The duties or responsibilities of the Term Debt Representatives under this Section 2.6 shall be limited solely to holding or controlling the Common Collateral as bailee and non-fiduciary agent in accordance with this Section 2.6 and delivering the Common Collateral upon the Term Debt Obligations Payment Date as provided in this Section 2.6.
SECTION 3. Enforcement Rights.
3.3Exclusive Enforcement. Until the Senior Obligations Payment Date has occurred, whether or not an Insolvency Proceeding has been commenced by or against any Loan Party, the Senior Secured Parties shall have the exclusive right to take and continue any Enforcement Action (including the right to credit bid their debt) with respect to the Senior Collateral, without any consultation with or consent of any Junior Secured Party, but subject to the proviso set forth in Section 5.1 and subject to Sections 3.7 to 3.9 inclusive; provided, that the Junior Secured Parties are not deemed to have waived any rights to credit bid with respect to the Shared Collateral so long as any such credit bid provides for the payment in full in cash of the Senior Obligations resulting in the applicable Senior Obligations Payment Date. Upon the occurrence and during the continuance of a default or an event of default under the Senior Documents, each Senior Representative and the other Senior Secured Parties may take and continue any Enforcement Action with respect to the Senior Obligations and the Senior Collateral in such order and manner as they may determine in their sole discretion in accordance with the terms and conditions of the Senior Documents.
3.4Standstill and Waivers. Each Junior Representative, on behalf of itself and the other Junior Secured Parties, agrees that, until the Senior Obligations Payment Date has occurred, but subject to the proviso set forth in Section 5.1 and subject to Sections 3.7 to 3.9 inclusive:
(i)they will not take or cause to be taken any action, the purpose or effect of which is to make any Lien on any Senior Collateral that secures any Junior Obligation pari passu with or senior to, or to give any Junior Secured Party any preference or priority relative to, the Liens on the Senior Collateral securing the Senior Obligations;
(ii)they will not contest, oppose, object to, interfere with, hinder or delay, in any manner, whether by judicial proceedings (including without limitation the filing of an Insolvency
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Proceeding) or otherwise, any foreclosure, sale, lease, exchange, transfer or other disposition of the Senior Collateral by any Senior Secured Party or any other Enforcement Action taken (or any forbearance from taking any Enforcement Action) in respect of the Senior Collateral by or on behalf of any Senior Secured Party;
(iii)they have no right to (x) direct either any Senior Representative or any other Senior Secured Party to exercise any right, remedy or power with respect to the Senior Collateral or pursuant to the Senior Security Documents in respect of the Senior Collateral or (y) consent or object to the exercise by any Senior Representative or any other Senior Secured Party of any right, remedy or power with respect to the Senior Collateral or pursuant to the Senior Security Documents with respect to the Senior Collateral or to the timing or manner in which any such right is exercised or not exercised (or, to the extent they may have any such right described in this clause (iii), whether as a junior lien creditor in respect of the Senior Collateral or otherwise, they hereby irrevocably waive such right);
(iv)they will not institute any suit or other proceeding or assert in any suit, Insolvency Proceeding or other proceeding any claim against any Senior Secured Party seeking damages from or other relief by way of specific performance, instructions or otherwise, with respect to, and no Senior Secured Party shall be liable for, any action taken or omitted to be taken by any Senior Secured Party with respect to the Senior Collateral or pursuant to the Senior Documents in respect of the Senior Collateral;
(v)they will not commence judicial or nonjudicial foreclosure proceedings with respect to, seek to have a trustee, monitor, receiver, interim receiver, administrator, liquidator or similar official appointed for or over, attempt any action to take possession of any Senior Collateral, exercise any right, remedy or power with respect to, or otherwise take any action to enforce their interest in or realize upon, the Senior Collateral; and
(vi)they will not seek, and hereby waive any right, to have the Senior Collateral or any part thereof marshaled upon any foreclosure or other disposition of the Senior Collateral;
provided that, notwithstanding the foregoing, any Junior Secured Party may exercise its rights and remedies in respect of the Senior Collateral under the Junior Documents or applicable law (and any recovery therefrom shall be for the benefit of the Senior Secured Parties) after the passage of a period of 180 days (the “Standstill Period”) from the date of delivery of a notice in writing to each Senior Representative of its intention to exercise such rights and remedies, which notice may only be delivered following the occurrence of and during the continuation of an “Event of Default” under and as defined in the Junior Documents; provided, further, however, that, notwithstanding the foregoing, in no event shall any Junior Secured Party exercise or continue to exercise any such rights or remedies if, notwithstanding the expiration of the Standstill Period, (i) any Senior Secured Party shall have commenced and be diligently pursuing the exercise of any of its rights and remedies with respect to any of the Senior Collateral (prompt notice of such exercise to be given to each Junior Representative) or is diligently attempting to vacate any stay or prohibition against such exercise or (ii) an Insolvency Proceeding in respect of any Loan Party shall have been commenced; and provided, further, that in any Insolvency Proceeding commenced by or against any Loan Party, the Junior Representatives and the Junior Secured Parties may not take any action except as expressly permitted by Section 5.
3.5Rights as Unsecured Creditors; Judgment Creditors. (a) Except as otherwise expressly set forth in this Agreement, any of the Junior Secured Parties may exercise rights and remedies as unsecured creditors against the Company or any other Loan Party in accordance with the terms of the Junior
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Documents and applicable law (including in any Insolvency or Liquidation Proceeding, filing any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the Company or any applicable Loan Party), in each case to the extent not inconsistent with the provisions of this Agreement.
(b) In the event that any Term Debt Secured Party becomes a judgment lien creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes (including in relation to the ABL Liens and the ABL Obligations) to the same extent as all other Liens securing the Term Debt Obligations are subject to the terms of this Agreement. In the event that any ABL Secured Party becomes a judgment lien creditor in respect of Common Collateral as a result of its enforcement of its rights as an unsecured creditor, such judgment lien shall be subject to the terms of this Agreement for all purposes (including in relation to the Term Debt Liens and the Term Debt Obligations) to the same extent as all other Liens securing the ABL Obligations are subject to the terms of this Agreement.
3.6Cooperation; Sharing of Information and Access. (a) Each Term Debt Representative, on behalf of itself and the other Term Debt Secured Parties, agrees that each of them shall take such actions as any ABL Representative shall reasonably request in connection with the exercise by the ABL Secured Parties of their rights set forth herein in respect of the ABL Priority Collateral (at the sole cost and expense of such ABL Representative (but with the Loan Parties’ reimbursement and indemnity obligations with respect thereto as provided in the ABL Documents, which shall not be limited hereby)). Each ABL Representative, on behalf of itself and the other ABL Secured Parties, agrees that each of them shall take such actions as any Term Debt Representative shall reasonably request in connection with the exercise by the Term Debt Secured Parties of their rights set forth herein in respect of the Term Debt Priority Collateral (at the sole cost and expense of such Term Debt Representative (but with the Loan Parties’ reimbursement and indemnity obligations with respect thereto as provided in the Term Debt Documents, which shall not be limited hereby)).
(b)In the event that any ABL Representative shall, in the exercise of its rights under the ABL Security Documents or otherwise, receive possession or control of any books and Records of any Loan Party which contain information identifying or pertaining to the Term Debt Priority Collateral, such ABL Representative shall, subject to any confidentiality restrictions, upon request from the Controlling Term Debt Representative and as promptly as practicable thereafter, either make available to the Controlling Term Debt Representative such books and Records for inspection and duplication or provide to the Controlling Term Debt Representative copies thereof. In the event that any Term Debt Representative shall, in the exercise of its rights under the Term Debt Security Documents or otherwise, receive possession or control of any books and records of any Loan Party which contain information identifying or pertaining to any of the ABL Priority Collateral, such Term Debt Representative shall, subject to any confidentiality restrictions, upon request from the Controlling ABL Representative and as promptly as practicable thereafter, either make available to the Controlling ABL Representative such books and records for inspection and duplication or provide the Controlling ABL Representative copies thereof. Each Term Debt Representative hereby irrevocably grants each ABL Representative a non-exclusive worldwide license in and to, or right to use, consistent with applicable law, to the extent of such Term Debt Representative’s interest therein and reasonably requested by such ABL Representative, exercisable without payment of royalty or other compensation, any of the Intellectual Property now or hereafter owned by, licensed to, or otherwise used by the Loan Parties in order for such ABL Representative and ABL Secured Parties to purchase, use, market, repossess, possess, store, assemble, manufacture, process, sell, transfer, distribute or otherwise dispose of any asset included in the ABL Priority Collateral in connection with the liquidation, disposition or realization upon the ABL Priority Collateral in accordance with the terms and conditions of the ABL Security Documents and the other ABL Documents. Each Term Debt Representative agrees that
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any sale, transfer or other disposition of any of the Loan Parties’ Intellectual Property (whether by foreclosure or otherwise) will be subject to each ABL Representative’s rights as set forth in this Section 3.4 and will procure that any buyer, transferee or other recipient of such Intellectual Property acknowledges such rights in writing.
(c)If any Term Debt Representative, or any agent or representative of any Term Debt Representative, or any receiver, shall, after the commencement of any Enforcement Action, obtain possession or physical control of any of the Term Debt Priority Collateral, such Term Debt Representative shall promptly notify the Controlling ABL Representative in writing of that fact, and the Controlling ABL Representative shall, within ten Business Days thereafter, notify such Term Debt Representative in writing as to whether the Controlling ABL Representative desires to exercise access rights under this Agreement. In addition, if any ABL Representative, or any agent or representative of any ABL Representative, or any receiver, shall obtain possession or physical control of any of the Term Debt Priority Collateral in connection with an Enforcement Action, then such ABL Representative shall promptly notify the Controlling Term Debt Representative that such ABL Representative is exercising its access rights under this Agreement and its rights under Section 3.4 under either circumstance. Upon delivery of such notice by any ABL Representative to any Term Debt Representative, such ABL Representative and such Term Debt Representative shall confer in good faith to coordinate with respect to such ABL Representative’s exercise of such access rights, with such access rights to apply to any parcel or item of Term Debt Priority Collateral access to which is reasonably necessary to enable such ABL Representative during normal business hours to arrange to convert ABL Priority Collateral consisting of raw materials and work-in- process into saleable finished goods and/or to arrange to transport such ABL Priority Collateral to a point where such conversion can occur, to otherwise prepare ABL Priority Collateral for sale and/or to arrange or effect the sale of ABL Priority Collateral, all in accordance with the manner in which such matters are completed in the ordinary course of business. Consistent with the definition of “Access Period,” access rights will apply to differing parcels or items of Term Debt Priority Collateral at differing times, in which case, a differing Access Period will apply to each such parcel or items. During any pertinent Access Period,
(i) each ABL Representative and its agents, representatives and designees shall have an irrevocable, non- exclusive right to have access to, and a rent-free right to use, the relevant parcel or item the Term Debt Priority Collateral for the purposes described above and (ii) the applicable ABL Representative shall be obligated hereunder to reimburse the applicable Term Debt Representative for all operating costs of such Term Debt Priority Collateral incurred after the commencement of the relevant Access Period (it being understood that operating costs shall not include insurance) to the extent (x) incurred as a result of the exercise by such ABL Representative of its access rights and (y) actually paid by such Term Debt Representative or the Term Debt Secured Parties. Each ABL Representative shall take proper and reasonable care under the circumstances of any Term Debt Priority Collateral that is used by such ABL Representative during the Access Period and repair and replace any damage (ordinary wear-and-tear excepted) caused by such ABL Representative or its agents, representatives or designees, and leave the Term Debt Collateral in substantially the same condition as it was at the commencement of the occupancy, use or control by such ABL Representative or its agents, representatives or designees (ordinary wear-and- tear excepted), and such ABL Representative shall comply with all applicable laws in all material respects in connection with its use or occupancy or possession of such ABL Priority Collateral. Each ABL Representative shall indemnify and hold harmless the Term Debt Representative and the Term Debt Creditors for any injury or damage to Persons or property (ordinary wear-and-tear excepted) and for any losses, claims, liabilities or expenses directly resulting from the occupancy, use or control by such ABL Representatives or its agents, representatives or designees or by the acts or omissions of Persons under its control; provided, however, that the ABL Representatives and the ABL Creditors will not be liable for any diminution in the value of Term Debt Priority Collateral caused by the absence of the ABL Priority Collateral therefrom. Each ABL Representative and each Term Debt Representative shall cooperate and use reasonable efforts to ensure that their activities during the Access Period as described above do not
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interfere materially with the activities of the other as described above, including the right of any Term Debt Representative to show the Term Debt Priority Collateral to prospective purchasers and to ready the Term Debt Priority Collateral for sale. Consistent with the definition of the term “Access Period,” if any order or injunction is issued or stay is granted or is otherwise effective by operation of law that prohibits any ABL Representative from exercising any of its rights hereunder, then the Access Period granted to such ABL Representative under this Section 3.4 shall be stayed during the period of such prohibition and shall continue thereafter for the number of days remaining as required under this Section 3.4. No Term Debt Representative shall foreclose or otherwise sell, remove or dispose of any of the Term Debt Priority Collateral during the Access Period with respect to such Term Debt Priority Collateral if any ABL Representative (acting in good faith) informs the Term Debt Representative in writing that such Term Debt Priority Collateral is reasonably necessary to enable such ABL Representative to arrange to convert, transport or arrange to sell the ABL Priority Collateral as described above; provided, however, that nothing contained in this Agreement shall restrict any Term Debt Representative from foreclosing or otherwise selling, removing, transferring or disposing of any Term Debt Priority Collateral prior to the expiration of the Access Period if the purchaser, assignee or transferee agrees to be bound by the provisions of this Section 3.4(c) in writing (for the benefit of each ABL Representative and the ABL Secured Parties).
3.7No Additional Rights For the Loan Parties Hereunder. Except as provided in Section 3.6 hereof, if any ABL Secured Party or Term Debt Secured Party shall enforce its rights or remedies in violation of the terms of this Agreement, no Loan Party shall be entitled to use such violation as a defense to any action by any ABL Secured Party or Term Debt Secured Party, nor to assert such violation as a counterclaim or basis for set off or recoupment against any ABL Secured Party or Term Debt Secured Party.
3.8Actions Upon Breach. (a) If any ABL Secured Party or Term Debt Secured Party, contrary to this Agreement, commences or participates in any action or proceeding against any Loan Party or the Common Collateral, such Loan Party, with the prior written consent of the Controlling ABL Representative or the Controlling Term Debt Representative, as applicable, may interpose as a defense or dilatory plea the making of this Agreement, and any ABL Secured Party or Term Debt Secured Party, as applicable, may intervene and interpose such defense or plea in its or their name or in the name of such Loan Party.
(b) Should any ABL Secured Party or Term Debt Secured Party, contrary to this Agreement, in any way take, attempt to or threaten to take any action with respect to the Common Collateral (including, without limitation, any attempt to realize upon or enforce any remedy with respect to this Agreement), or fail to take any action required by this Agreement, any ABL Secured Party or Term Debt Secured Party (in its own name or in the name of the relevant Loan Party), as applicable, or the relevant Loan Party, may obtain relief against such ABL Secured Party or Term Debt Secured Party, as applicable, by injunction, specific performance and/or other appropriate equitable relief, it being understood and agreed by each ABL Representative on behalf of each ABL Secured Party and each Term Debt Representative on behalf of each Term Debt Secured Party that (i) the ABL Secured Parties’ or Term Debt Secured Parties’, as applicable, damages from its actions may at that time be difficult to ascertain and may be irreparable, and (ii) each Term Debt Secured Party or ABL Secured Party, as applicable, waives any defense that the Loan Parties and/or the Term Debt Secured Parties and/or ABL Secured Parties, as applicable, cannot demonstrate damage and/or be made whole by the awarding of damages.
3.9UK Matters. Anything to the contrary in Sections 3.1 and 3.2 notwithstanding:
(a)if any ABL Representative intends to commence out-of-court process administration proceedings with respect to any UK Loan Party, such ABL Representative shall, prior to filing notice of an intention to appoint a UK Administrator or any other documents in connection therewith at court, give written notice (by email, with an original to follow by mail) to the Controlling Term Debt Representative
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of its intention to do so (such notice being an “ABL Administrator Appointment Notice” and the 5 Business Day period (or such other time period as may be mutually agreed in writing between such ABL Representative and Controlling Term Debt Representative) following the receipt by the Controlling Term Debt Representative of the ABL Administrator Appointment Notice being the “ABL Administrator Appointment Notice Period”). The Controlling Term Debt Representative shall be entitled at any time during the ABL Administrator Appointment Notice Period to select and appoint a UK Administrator, which such selection and appointment shall override any selection of such ABL Representative, provided that such appointee is either (i) at least two individuals from any one of the firms listed on the Agreed List (the “Agreed Firms”) or (ii) any other Person(s) with the prior written consent of such ABL Representative (acting at the direction of the ABL Administrative Agent in accordance with Section 10.5). If the Controlling Term Debt Representative consents in writing to the appointment of the UK Administrator identified by such ABL Representative in an ABL Administrator Appointment Notice, or declines to agree to the identity of a UK Administrator prior to the end of the ABL Administrator Appointment Notice Period, then such ABL Representative’s selection shall prevail and such ABL Representative shall then be entitled to select and appoint a UK Administrator;
(b)if any Term Debt Representative intends to commence out-of-court process administration proceedings with respect to any UK Loan Party, such Term Debt Representative shall, prior to filing notice of an intention to appoint a UK Administrator or any other documents in connection therewith at court, give written notice (by email, with an original to follow by mail) to the Controlling ABL Representative of its intention to do so (such notice being a “Term Debt Administrator Appointment Notice” and the 5 Business Day period (or such other time period as may be mutually agreed in writing between the Controlling ABL Representative and such Term Debt Representative) following the receipt by the Controlling ABL Representative of the Term Debt Administrator Appointment Notice being the “Term Debt Administrator Appointment Notice Period”). The Controlling ABL Representative shall be entitled at any time during the Term Debt Administrator Appointment Notice Period to select and appoint a UK Administrator, which such selection and appointment shall override any selection of such Term Debt Representative, provided that such appointee is either (i) at least two individuals from any one of the Agreed Firms or (ii) any other Person(s) with the prior written consent of such Term Debt Representative (acting at the direction of the Agent for the relevant series of Term Debt Obligations in accordance with Section 10.5). If the Controlling ABL Representative consents in writing to the appointment of the UK Administrator identified by such Term Debt Representative in a Term Debt Administrator Appointment Notice, or declines to agree to the identity of a UK Administrator prior to the end of the Term Debt Administrator Appointment Notice Period, then such Term Debt Representative’s selection shall prevail and such Term Debt Representative shall then be entitled to select and appoint a UK Administrator;
(c)if any UK Loan Party intends, or the directors of any UK Loan Party intend, to commence out-of-court process administration proceedings with respect to such UK Loan Party, such UK Loan Party or directors (as the case may be) shall, prior to filing notice of an intention to appoint a UK Administrator or any other documents in connection therewith at court, give 5 Business Days’ written notice of it or their (as the case may be) intention to do so to the Controlling ABL Representative and the Controlling Term Debt Representative (such notice being a “UK Loan Party Administrator Appointment Notice”). In such circumstances the Controlling ABL Representative (and not the Controlling Term Debt Representative, notwithstanding its rights under the UK Insolvency Act 1986) shall be entitled to appoint (i) at least two individuals from any one of the Agreed Firms, or (ii) any other Person(s) with the prior written consent of the Controlling Term Debt Representative (acting at the direction of the Agent for the relevant series of Term Debt Obligations in accordance with Section 10.5). If the Controlling ABL Representative declines to select and appoint a UK Administrator prior to the end of the tenth Business Day (or such other time period as may be mutually agreed in writing between the applicable UK Loan Party, Controlling ABL Representative and Controlling Term Debt Representative) following delivery of a UK Loan Party
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Administrator Appointment Notice, the applicable UK Loan Party shall then be entitled to select and appoint a UK Administrator;
(d)if any ABL Representative intends to apply to court to commence an administration process, such ABL Representative must notify the Controlling Term Debt Representative as soon as is reasonably practicable of its intention to do so, but in any event not less than 5 Business Days prior to filing any documents in connection therewith at court (an “ABL Administration Process Notice”). In such circumstances, the Controlling Term Debt Representative shall be entitled to appoint (i) at least two individuals from any one of the Agreed Firms, or (ii) any other Person(s) with the prior written consent of such ABL Representative (acting at the direction of the ABL Administrative Agent in accordance with Section 10.5). If the Controlling Term Debt Representative consents in writing to the appointment of the UK Administrator identified by such ABL Representative in an ABL Administration Process Notice, or declines to agree to the identity of a UK Administrator within 5 Business Days of receipt of an ABL Administration Process Notice (or such longer period as such ABL Representative and the Controlling Term Debt Representative may mutually agree in writing) then such ABL Representative’s selection shall prevail and such ABL Representative shall then be entitled to select and appoint a UK Administrator;
(e)if any Term Debt Representative intends to apply to court to commence an administration process, such Term Debt Representative must notify the Controlling ABL Representative as soon as is reasonably practicable of its intention to do so, but in any event not less than 5 Business Days prior to filing any documents in connection therewith at court (a “Term Debt Administration Process Notice”). In such circumstances, the Controlling ABL Representative shall be entitled to appoint (i) at least two individuals from any one of the Agreed Firms, or (ii) any other Person(s) with the prior written consent of such Term Debt Representative (acting at the direction of the Agent for the relevant series of Term Debt Obligations in accordance with Section 10.5). If the Controlling ABL Representative consents in writing to the appointment of the UK Administrator identified by such Term Debt Representative in a Term Debt Administration Process Notice, or declines to agree to the identity of a UK Administrator within 5 Business Days of receipt of a Term Debt Administration Process Notice (or such longer period as the Controlling ABL Representative and such Term Debt Representative may mutually agree in writing) then such Term Debt Representative’s selection shall prevail and such Term Debt Representative shall then be entitled to select and appoint a UK Administrator;
(f)if any UK Loan Party intends, or the directors of any UK Loan Party intend, to apply to court to commence an administration process, such UK Loan Party or directors (as the case may be) shall, prior to filing any other documents in connection therewith at court, give 10 Business Days’ written notice of its or their (as the case may be) intention to do so to the Controlling ABL Representative and the Controlling Term Debt Representative (such notice being a “UK Loan Party Administration Process Notice”). In such circumstances the Controlling ABL Representative (and not the Controlling Term Debt Representative, notwithstanding its rights under the UK Insolvency Act 1986) shall be entitled to appoint
(i) at least two individuals from any one of the Agreed Firms, or (ii) any other Person(s) with the prior written consent of the Controlling Term Debt Representative (acting at the direction of the Agent for the relevant series of Term Debt Obligations in accordance with Section 10.5). If the Controlling ABL Representative declines to select and appoint a UK Administrator prior to the end of the tenth Business Day (or such other time period as may be mutually agreed in writing between the applicable UK Loan Party, Controlling ABL Representative and Controlling Term Debt Representative) following delivery of a UK Loan Party Administrator Appointment Notice, the applicable UK Loan Party shall then be entitled to select and appoint a UK Administrator;
(g)if the appointment of a UK Administrator is made in accordance with paragraphs (a) through (f) above, no ABL Representative, no Term Debt Representative nor any UK Loan Party shall
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object to such selection and appointment or (except in the case of any misfeasance by such appointee, but subject in such case to prior consultation with the Controlling ABL Representative and the Controlling Term Debt Representative) seek to replace such appointee;
(h)if any UK Administrator (or any receiver, liquidator, examiner or other officeholder appointed in connection with any Insolvency or Liquidation Proceedings involving any UK Loan Party) wishes to (i) consult with, or refer questions to, the creditors of a UK Loan Party, then it is agreed that, (A) in relation to ABL Priority Collateral, each Term Debt Representative shall defer to the Controlling ABL Representative in liaising with the UK Administrator (or such receiver, liquidator, examiner or other officeholder), and (B) in relation to Term Debt Priority Collateral, each ABL Representative shall defer to the Controlling Term Debt Representative in liaising with the UK Administrator (or such receiver, liquidator, examiner or other officeholder); and (ii) consult with, or refer questions to, or obtain approvals, consents or directions from (as the case may be), the creditors of a UK Loan Party on any matters relating to the administration which do not relate to the enforcement, realization and/or disposal of the Collateral, then it is agreed that (A) to the extent the Person appointing the UK Administrator in accordance with this Section 3.7 was the Controlling Term Debt Representative, the UK Administrator shall consult with, refer questions to, or obtain consents or directions from (as applicable), such Controlling Term Debt Representative who, in turn, shall consult with the Controlling ABL Representative on such matters with the intention of ensuring a mutually beneficial outcome save that, following the Term Debt Obligations Payment Date, the Controlling Term Debt Representative will defer completely to the Controlling ABL Representative on such matters; and (B) to the extent the Person appointing the UK Administrator in accordance with this Section 3.7 was the Controlling ABL Representative, the UK Administrator shall consult with, refer questions to, or obtain consents or directions from (as applicable), such Controlling ABL Representative who, in turn, shall consult with the Controlling Term Debt Representative on such matters with the intention of ensuring a mutually beneficial outcome save that, following the ABL Obligations Payment Date, the Controlling ABL Representative will defer completely to the Controlling Term Debt Representative on such matters. The Person appointing the UK Administrator (or receiver, liquidator, examiner or other officeholder appointed in connection with such Insolvency or Liquidation Proceedings) shall make the UK Administrator (or such receiver, liquidator, examiner or other officeholder) expressly aware of such arrangements upon the appointment of the UK Administrator (or such receiver, liquidator, examiner or other officeholder). For the avoidance of doubt, to the extent that any UK Administrator (or any receiver, liquidator, examiner or other officeholder appointed in connection with any Insolvency Proceedings involving any UK Loan Party) requests direction from, or the consent of, (A) any ABL Representative in connection with the transfer, operation, protection, exchange, disposal or the taking of (or the failure to take) any action with respect to Term Debt Priority Collateral in accordance with the terms of this Agreement, such ABL Representative shall give such responses as are determined by the Controlling Term Debt Representative to the extent not inconsistent with the terms of this Agreement, and (B) any Term Debt Representative in connection with the transfer, operation, protection, exchange, disposal or the taking of (or the failure to take) any action with respect to ABL Priority Collateral in accordance with the terms of this Agreement, such Term Debt Representative shall give such responses as are determined by the Controlling ABL Representative to the extent not inconsistent with the terms of this Agreement;
(i)no Standstill Period shall apply to the appointment of, or any application to court to appoint, a UK Administrator by either any ABL Representative or any Term Debt Representative; provided that any such appointment of, or application to court to appoint, a UK Administrator is made in accordance with paragraphs (a) to (f) above; and
(j)the fees, costs and expenses of any UK Administrator appointed pursuant to this Section
3.7 shall be governed by the UK Insolvency Act 1986. Such fees, costs and expenses of any UK Administrator pursuant to paragraph 99 of Schedule B1 of the UK Insolvency Act 1986 and rule 3.51 of
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the Insolvency (England and Wales) Rules 2016, together with any other amounts which rank in priority to the floating charge granted to the European Collateral Agent to secure the Secured Obligations pursuant to applicable law (including without limitation Sections 174A, 175, 176A, 176ZA, or Schedule 6 of the UK Insolvency Act 1986), shall be paid out of the proceeds of any property comprised in or subject to such floating charge in priority to the European Collateral Agent, such priority claims to be apportioned on a pro rata basis between the ABL Priority Collateral floating charge realizations and the Term Debt Priority Collateral floating charge realizations. The Person appointing the UK Administrator shall make the UK Administrator expressly aware of such arrangements upon the appointment of the UK Administrator; and
(k)without prejudice to Section 10 (European Collateral Agent) of this Agreement (i) for the avoidance of doubt, any ABL Administrator Period Notice, Term Debt Administrator Period Notice, UK Loan Party Administrator Notice, ABL Administration Period Notice, Term Debt Administration Period Notice, UK Loan Party Administration Notice or other notices received by (A) a Controlling ABL Representative pursuant to this Section 3.7 shall promptly (and in any event on the same day) be delivered to the ABL Administrative Agent; and (B) a Controlling Term Debt Representative pursuant to this Section
3.7 shall promptly (and in any event on the same day) be delivered to the applicable Agents from whom it is obtaining direction and/or instructions pursuant to this Agreement; and (ii) for the avoidance of doubt, any ability for the ABL Representative and the Term Debt Representative to mutually agree an extension to any time period in writing as further described in this Section 3.7 shall be on the basis of any instructions the ABL Representative receives from the ABL Administrative Agent and the Term Debt Representative receives from the applicable Agents from whom it is obtaining direction and/or instructions pursuant to this Agreement.
3.10Swedish Matters. Notwithstanding anything to the contrary in this Section 3, (a) in respect of any Swedish Corporate Mortgage: (a) the ABL Secured Parties and the Term Debt Secured Parties acknowledge that it represents a Lien over both ABL Priority Collateral and Term Debt Priority Collateral in respect of which Enforcement Action may only be taken in respect of all of the Collateral subject to that Lien; and (b) to facilitate Enforcement Action being taken over any Swedish Corporate Mortgage, the Parties agree that (i) to the extent that any ABL Representative is entitled to take Enforcement Action in respect of a Swedish Corporate Mortgage in accordance with its terms and the relevant Debt Agreement or any ABL Representative and any Term Debt Representative are entitled to take Enforcement Action in respect of such Swedish Corporate Mortgage in accordance with its terms and the relevant Debt Agreement, the Controlling ABL Representative shall be the sole Representative entitled to take any such Enforcement Action, provided that (A) prior to taking such Enforcement Action, the Controlling ABL Representative provides not less than 5 Business Days’ notice to the Controlling Term Debt Representative during which period (or such longer time period that may be agreed by the Controlling ABL Representative and each Term Debt Representative) the Controlling ABL Representative consults and cooperates with the Controlling Term Debt Representative (without any obligation) with the intent of enforcing the Swedish Corporate Mortgage in a mutually beneficial and diligent manner; and (B) if the Controlling ABL Representative has not commenced Enforcement Action (and the Representatives are not still consulting in accordance with paragraph (A) above) within 5 Business Days (or such longer time period that may be agreed by the Controlling ABL Representative and the Controlling Term Debt Representative pursuant to clause (b)(i)(A) above) of being entitled to take any such Enforcement Action, and the Controlling Term Debt Representative is otherwise entitled to take Enforcement Action pursuant to the terms of the Swedish Corporate Mortgage and the relevant Debt Agreement, the Controlling Term Debt Representative may take Enforcement Action the Swedish Corporate Mortgage in a mutually beneficial and diligent manner; and
(C) any Proceeds received by any Representative in respect of the taking of any such Enforcement Action shall be applied in accordance with Section 4.1; and (ii) to the extent that any Term Debt Representative is entitled to take Enforcement Action in respect of any Swedish Corporate Mortgage in accordance with its terms and the relevant Debt Agreement (and the Controlling ABL Representative is not so entitled to take
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Enforcement Action in respect of such Swedish Corporate Mortgage in accordance with its terms and the relevant Debt Agreement), the Controlling Term Debt Representative shall be the sole Representative entitled to take any such Enforcement Action, provided that (A) prior to taking such Enforcement Action, the Controlling Term Debt Representative provides not less than 5 Business Days’ notice to the Controlling ABL Representative during which period (or such longer time period that may be agreed by the Controlling ABL Representative and the Controlling Term Debt Representative) the Controlling Term Debt Representative consults and cooperates with the Controlling ABL Representative (without any obligation) with the intent of enforcing the Swedish Corporate Mortgage in a mutually beneficial and diligent manner; and (B) if the Controlling Term Debt Representative has not commenced Enforcement Action (and the Representatives are not still consulting in accordance with paragraph (A) above) within 5 Business Days (or such longer time period that may be agreed by the Controlling ABL Representative and the Controlling Term Debt Representative pursuant to clause (b)(ii)(A) above) of being entitled to take any such Enforcement Action, and the Controlling ABL Representative becomes otherwise entitled to take Enforcement Action pursuant to the terms of the Swedish Corporate Mortgage and the relevant Debt Agreement, the Controlling ABL Representative may take Enforcement Action under the Swedish Corporate Mortgage in a mutually beneficial and diligent manner; and (C) any Proceeds received by any Representative in respect of the taking of any such Enforcement Action shall be applied in accordance with Section 4.1. Without prejudice to Section 10 (European Collateral Agent) of this Agreement, (i) for the avoidance of doubt, any notices received by (A) a Controlling ABL Representative pursuant to this Section
3.8 shall promptly (and in any event on the same day) be delivered to the ABL Administrative Agent; and
(B) a Controlling Term Debt Representative pursuant to this Section 3.8 shall promptly (and in any event on the same day) be delivered to the applicable Agents from whom it is obtaining direction and/or instructions pursuant to the terms of this Agreement; and (ii) for the avoidance of doubt, any ability for the ABL Representative and the Term Debt Representative to mutually agree an extension to any time period in writing as further described in this Section 3.8 shall be on the basis of any instructions the ABL Representative receives from the ABL Administrative Agent and the Term Debt Representative receives from the applicable Agents from whom it is obtaining direction and/or instructions pursuant to this Agreement.
3.11Polish Matters. Notwithstanding anything to the contrary in this Section 3, (a) in respect of any Polish Enterprise Pledge: (a) the ABL Secured Parties and the Term Debt Secured Parties acknowledge that it represents a Lien over both ABL Priority Collateral and Term Debt Priority Collateral in respect of which Enforcement Action may only be taken in respect of all of the Collateral subject to that Lien; and (b) to facilitate Enforcement Action being taken over any Polish Enterprise Pledge, the Parties agree that (i) to the extent that any ABL Representative is entitled to take Enforcement Action in respect of a Polish Enterprise Pledge in accordance with its terms and the relevant Debt Agreement or any ABL Representative and any Term Debt Representative are entitled to take Enforcement Action in respect of such Polish Enterprise Pledge in accordance with its terms and the relevant Debt Agreement, the Controlling ABL Representative shall be the sole Representative entitled to instruct the European Collateral Agent to take any such Enforcement Action, provided that (A) prior to take such Enforcement Action, the Controlling ABL Representative provides not less than 5 Business Days’ notice to the Controlling Term Debt Representative during which period (or such longer time period that may be agreed by the Controlling ABL Representative and each Term Debt Representative) the Controlling ABL Representative consults and cooperates with the Term Debt Representatives (without any obligation) with the intent of enforcing the Polish Enterprise Pledge in a mutually beneficial and diligent manner; and (B) if the Controlling ABL Representative has not commenced Enforcement Action (and the Representatives are not still consulting in accordance with paragraph (A) above) within 5 Business Days (or such longer time period that may be agreed by the Controlling ABL Representative and each Term Debt Representative pursuant to clause (b)(i)(A) above) of being entitled to take any such Enforcement Action, and the Controlling Term Debt Representative is otherwise entitled to take any such Enforcement Action pursuant to the terms of the Polish
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Enterprise Pledge and the relevant Debt Agreement, the Controlling Term Debt Representative may take Enforcement Action under the Polish Enterprise Pledge in a mutually beneficial and diligent manner; and
(C) any Proceeds received by any Representative in respect of the taking of any such Enforcement Action shall be applied in accordance with Section 4.1; and (ii) to the extent that any Term Debt Representative is entitled to take Enforcement Action in respect of any Polish Enterprise Pledge in accordance with its terms and the relevant Debt Agreement (and the Controlling ABL Representative is not so entitled to take Enforcement Action in respect of such Polish Enterprise Pledge in accordance with its terms and the relevant Debt Agreement), the Controlling Term Debt Representative shall be the sole Representative entitled to take any such Enforcement Action, provided that (A) prior to taking such Enforcement Action, the Controlling Term Debt Representative provides not less than 5 Business Days’ notice to each ABL Representative during which period (or such longer time period that may be agreed by each ABL Representative and the Controlling Term Debt Representative) the Controlling Term Debt Representative consults and cooperates with the Controlling ABL Representative (without any obligation) with the intent of enforcing the Polish Enterprise Pledge in a mutually beneficial and diligent manner; and (B) if the Controlling Term Debt Representative has not commenced Enforcement Action (and the Representatives are not still consulting in accordance with paragraph (A) above) within 5 Business Days (or such longer time period that may be agreed by the Controlling ABL Representative and the Controlling Term Debt Representative pursuant to clause (b)(ii)(A) above) of being entitled to take any such Enforcement Action, and the Controlling ABL Representative becomes otherwise entitled to take Enforcement Action pursuant to the terms of the Polish Enterprise Pledge and the relevant Debt Agreement, the Controlling ABL Representative may take Enforcement Action under the Polish Enterprise Pledge in a mutually beneficial and diligent manner; and (C) any Proceeds received by any Representative in respect of the taking of any such Enforcement Action shall be applied in accordance with Section 4.1. Without prejudice to Section 10 (European Collateral Agent) of this Agreement, (i) for the avoidance of doubt, any notices received by (A) a Controlling ABL Representative pursuant to this Section 3.9 shall promptly (and in any event on the same day) be delivered to the ABL Administrative Agent; and (B) a Controlling Term Debt Representative pursuant to this Section 3.9 shall promptly (and in any event on the same day) be delivered to the applicable Agents from whom it is obtaining direction and/or instructions pursuant to the terms of this Agreement; and (ii) for the avoidance of doubt, any ability for the ABL Representative and the Term Debt Representative to mutually agree an extension to any time period in writing as further described in this Section 3.9 shall be on the basis of any instructions the ABL Representative receives from the ABL Administrative Agent and the Term Debt Representative receives from the applicable Agents from whom it is obtaining direction and/or instructions pursuant to this Agreement.
3.12Italian Matters: (a) Notwithstanding anything to the contrary in this Section 3, in respect of any Italian Collateral and Italian Guarantee, the ABL Secured Parties and the Term Debt Secured Parties acknowledge and agree that the liability of the Italian Loan Party shall not exceed at any time the sum of: (x) the aggregate principal amount of any amount made available to the relevant Italian Loan Party (or any of its direct or indirect Subsidiaries pursuant to article 2359, paragraph 1, numbers 1 and/or 2, of the Italian Civil Code) by using the proceeds of the Debt Agreements; and (y) the aggregate principal amount of any intercompany loans or other financial support in any form (such term, for the avoidance of doubt, not including equity contributions), advanced or made available to such Italian Guarantor (or any of its direct or indirect Subsidiaries pursuant to article 2359 of the Italian Civil Code) by any Loan Party (whether directly or indirectly) on or following the Issue Date, less the aggregate at that time of (I) all amounts paid by such Italian Loan Party under the Debt Documents and (II) all amounts recovered by any Secured Parties under any other security document under which the Italian Loan Party acts as security provider of the relevant Collateral and/or provider of any Term Debt Guarantee. Notwithstanding any provision to the contrary herein, (A) if and to the extent the guarantee of the Italian Loan Party under any Debt Documents and/or Collaterals and/or Term Debt Guarantees would result in a breach of any Italian provisions relating to financial assistance, including articles 2358 and 2474, as applicable, of the Italian Civil Code, applicable to that Italian Loan Party, the Italian Loan
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Party will be deemed to have no liability hereunder, any Debt Document and/or any Collateral and/or any Term Debt Guarantee of such Italian Loan Party in respect thereof shall not be in force and effect ab initio, provided that the Collaterals and/or the Term Debt Guarantees given by the Italian Guarantor will not guarantee any amount under the Debt Documents whose purpose or actual use is, directly or indirectly, to finance (and/or refinance) (i) the acquisition of the Italian Loan Party (and/or of any Controlling Person of the Italian Loan Party) and/or (ii) the subscription of an equity interest of the Italian Loan Party (and/or of any Controlling Person of the Italian Guarantor) and/or (iii) the payment of any interest, fees, costs and expenses, stamp, registration or other Taxes in connection therewith and/or (iv) any existing indebtedness incurred for the purposes of (i), (ii) and (iii) above; and (B) in order to comply with the mandatory provisions of Italian law in relation to (x) maximum interest rates (including the Italian Usury Law and article 1815 of the Italian Civil Code), and (y) capitalization of interests (including article 1283 of the Italian Civil Code and article 120 of the Italian Legislative Decree No, 385 of 1 September 1993), the obligations of the Italian Obligor under this Agreement, any Debt Document, any Term Debt Guarantee and/or any Collateral shall not include, and shall not extend to (1) any interest qualifying as usurious pursuant to the Italian Usury Law and (2) any interest on overdue amounts compounded in violation of the provisions set forth by article 1283 of the Italian Civil Code and/or article 120 of the Italian Legislative Decree No, 385 of 1 September 1993, respectively.
(b)Without prejudice to Section 3.10(a), in any event, (i) pursuant to article 1938 of the Italian Civil Code, the maximum amount that Diebold Nixdorf S.r.l. may be required to pay in respect of its obligations under the Debt Documents shall not exceed Euro 4,000,000.00 to be considered as a global cap applicable, without duplication, to such Italian Loan Party’s obligations under this agreement, any Debt Document, any Term Debt Guarantee and any Collateral granted by such Italian Loan Party to secure and/or guarantee the obligations under any Debt Documents (including but not limited to the Superpriority Credit Facility, the ABL Documents, the New Term Loan Facility, the Existing Term Loan Facility, the Notes or any Indenture; provided that such cap will not apply to any own debt payment obligations of Diebold Nixdorf S.r.l. as borrower under the ABL Agreement); (ii) the aggregate amount of interest guaranteed by an Italian Loan Party in respect of any obligation under the Debt Documents will be at any time equal to the interest then outstanding in respect of the principal amount of the relevant outstanding payment obligations under the Debt Documents; and (iii) it is hereby expressly acknowledged and agreed that, notwithstanding any provision to the contrary under this Agreement, in no event parallel debt or trust provisions under this Agreement shall apply to any Collateral or Term Debt Guarantee granted by any Italian Loan Party. Moreover, for the purposes of the transparency provisions set forth in the transparency rules (Disposizioni in materia di trasparenza delle operazioni e dei servizi bancari e finanziari. Correttezza delle relazioni tra intermediari e clienti) applicable to transactions and banking and financial services issued by Bank of Italy, as following amended and integrated, each Italian Loan Party hereby acknowledges and confirms that: (i) each of them has appointed and has been assisted by its respective legal counsels in connection with the negotiation, preparation and execution of this Indenture; and this Indenture, and all of its terms and conditions have been specifically negotiated in all their aspects (oggetto di trattativa individuale) between the parties hereof.
SECTION 4. Application of Proceeds of Senior Collateral; Dispositions and Releases of Lien; Notices and Insurance.
4.1Application of Proceeds.
(a)Application of Proceeds of Senior Collateral. Each Senior Representative, on behalf of itself and the other Senior Secured Parties, and each Junior Representative, on behalf of itself and the other Junior Secured Parties, hereby agree that all Senior Collateral, and all Proceeds thereof, received by either of them in connection with the collection, sale or disposition of Senior Collateral pursuant to any Enforcement Action or during any Insolvency Proceeding shall be applied,
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(lii)with respect to Senior Collateral that is ABL Priority Collateral,
first, to the payment of fees, costs and expenses (including reasonable attorneys’ fees and expenses and court costs) of each ABL Representative in connection with such Enforcement Action or Insolvency Proceeding;
second, to the payment of the ABL Obligations in accordance with the ABL Documents (or any other document, instrument or certificate evidencing or delivered in connection with the ABL Obligations) until the ABL Obligations Payment Date;
third, to the payment of the Term Debt Obligations in the manner set forth in the Multi Lien Intercreditor Agreement until the Term Debt Obligations Payment Date; and
fourth, the balance, if any, to the Loan Parties or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct; and
(liii)with respect to Senior Collateral that is Term Debt Priority Collateral:
first, to the payment of the Term Debt Obligations in the manner set forth in the Multi Lien Intercreditor Agreement until the Term Debt Obligations Payment Date;
second, to the payment of the ABL Obligations in accordance with the ABL Documents (or any other document, instrument or certificate evidencing or delivered in connection with the ABL Obligations) until the ABL Obligations Payment Date; and
third, the balance, if any, to the Loan Parties or to whosoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
All Proceeds of any sale of a Loan Party as a whole that owns any ABL Priority Collateral and Term Debt Priority Collateral (or only ABL Priority Collateral), or substantially all of the assets of any such Loan Party where the consideration received is not allocated by type of asset, in connection with or resulting from any Enforcement Action, and whether or not pursuant to an Insolvency Proceeding, shall be distributed as follows under clauses “first” and “second” under paragraphs (i) and (ii) above: first to the Controlling ABL Representative for application in accordance with clause “first” and then clause “second” under paragraph (i) as set forth above, up to the amount of the book value at the time of the sale of the ABL Collateral disposed of in such sale or owned by such Loan Party (in the case of a sale of such Loan Party as a whole), and second to the Controlling Term Debt Representative for application in accordance with clause “first” and then clause “second” under paragraph (ii) as set forth above to the extent such Proceeds exceed the book value at the time of the sale of such ABL Collateral (it being understood that book value shall be determined after giving effect to the applicable purchase).
(b)Limited Obligation or Liability. In exercising remedies, whether as a secured creditor or otherwise, no Senior Representative shall have any obligation or liability to any Junior Representative or to any Junior Secured Party, regarding the adequacy of any Proceeds or for any action or omission, save and except solely for an action or omission that breaches the express obligations undertaken by each party under the terms of this Agreement.
(c)Segregation of Collateral. Until the occurrence of the Senior Obligations Payment Date, any Senior Collateral that may be received by any Junior Secured Party in violation of this Agreement shall be
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segregated and held in trust or, in the case of a Loan Party incorporated in Sweden, separated as “escrow funds” (Sw. redovisningsmedel) or, in the case of any other Loan Party whose laws do not recognize a trust arrangement, for the order of (as applicable) and promptly paid over to the Controlling Senior Representative, for the benefit of the Senior Secured Parties, in the same form as received, with any necessary endorsements, and each Junior Secured Party hereby authorizes the Controlling Senior Representative to make any such endorsements as agent for such Junior Representative (which authorization, being coupled with an interest, is irrevocable).
4.2Releases of Liens. Upon any release, sale or disposition of Senior Collateral permitted pursuant to the terms of the Senior Documents that results in the release of the Senior Lien on any Senior Collateral (including without limitation any sale or other disposition pursuant to any Enforcement Action) (other than release of the Senior Lien due to the occurrence of the Senior Obligations Payment Date except as a result of such Enforcement Action), the Junior Lien on such Senior Collateral (excluding any portion of the proceeds of such Senior Collateral remaining after the Senior Obligations Payment Date occurs) shall be automatically and unconditionally released with no further consent or action of any Person (subject to any formalities that may need to be satisfied under the law governing such Lien). Each Junior Representative shall promptly execute and deliver such release documents and instruments and shall take such further actions as the Controlling Senior Representative or the Company shall request to evidence any release of the Junior Lien described in this Section 4.2. Each Junior Representative hereby appoints the Controlling Senior Representative and any officer or duly authorized person of the Controlling Senior Representative, with full power of substitution, as its true and lawful attorney-in-fact with full irrevocable power of attorney in the place and stead of such Junior Representative and in the name of such Junior Representative or in the Controlling Senior Representative’s own name, from time to time, in the Controlling Senior Representative’s sole discretion, for the purposes of carrying out the terms of this Section 4.2, to take any and all appropriate action and to execute and deliver any and all documents and instruments as may be necessary or desirable to accomplish the purposes of this Section 4.2, including, without limitation, any financing statements, endorsements, assignments, releases or other documents or instruments of transfer (which appointment, being coupled with an interest, is irrevocable).
4.3Certain Real Property Notices; Insurance. (a) [Reserved].
(b) Each Term Debt Representative shall give each ABL Representative at least 30 days’ notice prior to commencing any Enforcement Action against any Real Property owned by any Loan Party at which ABL Priority Collateral is stored or otherwise located or to dispossess any Loan Party from such Real Property.
(c)Proceeds of Common Collateral include insurance proceeds and therefore the Lien Priority shall govern the ultimate disposition of casualty insurance proceeds. Additionally, to the extent any insurance proceeds are received for business interruption, such proceeds shall be ABL Priority Collateral. The Controlling ABL Representative shall have the sole and exclusive right, as against each Term Debt Representative, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of ABL Priority Collateral. The Controlling Term Debt Representative shall have the sole and exclusive right, as against each ABL Representative, to adjust settlement of insurance claims in the event of any covered loss, theft or destruction of Term Debt Priority Collateral. All proceeds of such insurance shall be remitted to the Controlling ABL Representative or the Controlling Term Debt Representative, as the case may be, and each of the Controlling Term Debt Representative and Controlling ABL Representative shall cooperate (if necessary) in a reasonable manner in effecting the payment of insurance proceeds in accordance with Section 4.1.
4.4Spanish Insolvency Law provisions.
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(a)In the event of an Insolvency Proceeding in relation to any Spanish Loan Party, the Parties agree that pursuant to article 435.3 of the Spanish Insolvency Law, the provisions contained in this Section 4 regarding the application of Proceeds shall prevail over any classification of the claims carried out by the Spanish administrator (administrador concursal) of the relevant Insolvency Proceeding.
(b)As an exception to the above, after the occurrence of an Insolvency Proceeding if a Spanish Loan Party is declared insolvent and the recovering Secured Party is not a specially related person (persona especialmente relacionada) to such Spanish Loan Party as defined in article 282 of the Spanish lnsolvency Law, the recovering Secured Party will not need to pay a redistribution for those Secured Parties that have been regarded as specially related persons to the relevant Spanish Loan Party.
SECTION 5. Insolvency Proceedings.
5.26Filing of Motions. Until the Senior Obligations Payment Date has occurred, each Junior Representative agrees on behalf of itself and the other Junior Secured Parties that no Junior Secured Party shall, in or in connection with any Insolvency Proceeding, file any pleadings or motions, take any position at any hearing or proceeding of any nature, or otherwise take any action whatsoever, in each case in respect of any of the Senior Collateral, including, without limitation, with respect to the determination of any Liens or claims held by any Senior Representative (including the validity and enforceability thereof) or any other Senior Secured Party in respect of any Senior Collateral or the value of any claims of such parties under Section 506(a) of the Bankruptcy Code (or any other similar or equivalent provision under applicable Bankruptcy Law) or otherwise; provided that any Junior Representative may (i) file a claim or proof of claim in an Insolvency Proceeding, and (ii) file any necessary responsive or defensive pleadings in opposition of any motion or other pleadings made by any Person objecting to or otherwise seeking the disallowance of the claims of the Junior Secured Parties on the Senior Collateral, subject to the limitations contained in this Agreement and only if consistent with the terms and the limitations on the Junior Representatives imposed hereby.
5.27Financing Matters. (a) If any Loan Party becomes subject to any Insolvency Proceeding at any time prior to the ABL Obligations Payment Date, and if the Controlling ABL Representative or the other ABL Secured Parties desire to consent (or not object) to the use of cash collateral that is ABL Priority Collateral under any Bankruptcy Law or to provide financing to any Loan Party under any Bankruptcy Law or to consent (or not object) to the provision of such financing to any Loan Party by any third party (any such financing, “ABL DIP Financing”), then each Term Debt Representative and the other Term Debt Secured Parties agree that each Term Debt Secured Party (i)(x) will be deemed to have consented to, will raise no objection to, nor support any other Person objecting to, the use of such cash collateral or to such ABL DIP Financing on the grounds of a failure to provide “adequate protection” for any Term Debt Representative’s Lien on the Term Debt Collateral to secure the Term Debt Obligations or on any other grounds and (y) will not request any adequate protection solely as a result of such ABL DIP Financing except as set forth in Section 5.4 below and (ii) will subordinate (and will be deemed hereunder to have subordinated) the Term Debt Liens on any ABL Priority Collateral (A) to such ABL DIP Financing on the same terms as the ABL Liens are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any adequate protection provided to the ABL Secured Parties and (C) to any “carve-out” agreed to by the Controlling ABL Representative or the other ABL Secured Parties, so long as (x) each Term Debt Representative retains its Lien on the Term Debt Collateral to secure the Term Debt Obligations (in each case, including Proceeds thereof arising after the commencement of the case, application or proceeding under any Bankruptcy Law) and, as to the Term Debt Priority Collateral only, such Lien has the same priority as existed prior to the commencement of the case, application or proceeding under any Bankruptcy Law and any Lien securing such ABL DIP Financing is junior and subordinate to
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the Lien of each Term Debt Representative on the Term Debt Priority Collateral and (y) all Liens on ABL Priority Collateral securing any such ABL DIP Financing shall be senior to or on a parity with the Liens of the ABL Representatives and the ABL Lenders securing the ABL Obligations on ABL Priority Collateral. In no event will any of the ABL Secured Parties seek to obtain a priming Lien on any of the Term Debt Priority Collateral and nothing contained herein shall be deemed to be a consent by Term Debt Secured Parties to any adequate protection payments using Term Debt Priority Collateral.
(b)If any Loan Party becomes subject to any Insolvency Proceeding at any time prior to the Term Debt Obligations Payment Date, and if the Controlling Term Debt Representative or the other Term Debt Secured Parties desire to consent (or not object) to the use of cash collateral that is Term Debt Priority Collateral under any Bankruptcy Law or to provide financing to any Loan Party under any Bankruptcy Law or to consent (or not object) to the provision of such financing to any Loan Party by any third party (any such financing, “Term Debt DIP Financing”), then the each ABL Representative and the other ABL Secured Parties agree that each ABL Secured Party (i)(x) will be deemed to have consented to, will raise no objection to, nor support any other Person objecting to, the use of such cash collateral or to such Term Debt DIP Financing on the grounds of a failure to provide “adequate protection” for any ABL Representative’s Lien on the ABL Collateral to secure the ABL Obligations or on any other grounds and (y) will not request any adequate protection solely as a result of such Term Debt DIP Financing and (ii) will subordinate (and will be deemed hereunder to have subordinated) the ABL Liens on any Term Debt Priority Collateral (A) to such Term Debt DIP Financing on the same terms as the Term Debt Liens are subordinated thereto (and such subordination will not alter in any manner the terms of this Agreement), (B) to any adequate protection provided to the Term Debt Secured Parties and (C) to any “carve-out” agreed to by the Controlling Term Debt Representative or the other Term Debt Secured Parties, so long as (x) each ABL Representative retains its Lien on the ABL Collateral to secure the ABL Obligations (in each case, including Proceeds thereof arising after the commencement of the case, application or proceeding under any Bankruptcy Law) and, as to the ABL Priority Collateral only, such Lien has the same priority as existed prior to the commencement of the case, application or proceeding under any Bankruptcy Law and any Lien securing such Term Debt DIP Financing is junior and subordinate to the Lien of each ABL Representative on the ABL Priority Collateral and (y) all Liens on Term Debt Priority Collateral securing any such Term Debt DIP Financing shall be senior to or on a parity with the Liens of the Term Debt Representatives and the Term Debt Creditors securing the Term Debt Obligations on Term Debt Priority Collateral. In no event will any of the Term Debt Secured Parties seek to obtain a priming Lien on any of the ABL Priority Collateral, and nothing contained herein shall be deemed to be a consent by the ABL Secured Parties to any adequate protection payments using ABL Priority Collateral.
(c)All Liens granted to any Term Debt Representative or any ABL Representative in any Insolvency Proceeding, whether as adequate protection or otherwise, are intended to be and shall be deemed to be subject to the Lien Priority and the other terms and conditions of this Agreement.
5.28Relief From the Automatic Stay. Until the ABL Obligations Payment Date, each Term Debt Representative agrees, on behalf of itself and the other Term Debt Secured Parties, that none of them will seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, in each case in respect of any ABL Priority Collateral, without the prior written consent of the Controlling ABL Representative. Until the Term Debt Obligations Payment Date, each ABL Representative agrees, on behalf of itself and the other ABL Secured Parties, that none of them will seek relief from the automatic stay or from any other stay in any Insolvency Proceeding or take any action in derogation thereof, in each case in respect of any Term Debt Priority Collateral, without the prior written consent of the Controlling Term Debt Representative.
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5.29Adequate Protection. (a) Each Term Debt Representative, on behalf of itself and the other Term Debt Secured Parties, agrees that, prior to the ABL Obligations Payment Date, so long as each ABL Representative and the other ABL Secured Parties comply with Section 5.4(b), none of them shall object, contest, or support any other Person objecting to or contesting, (i) any request by any ABL Representative or the other ABL Secured Parties for adequate protection of its interest in the Common Collateral or any adequate protection provided to any ABL Representative or the other ABL Secured Parties or (ii) any objection by any ABL Representative or any other ABL Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of adequate protection in the Common Collateral or (iii) the periodic payment of amounts equal to interest, fees, expenses or other amounts provided to any ABL Representative or any other ABL Secured Party as adequate protection of its interest in the Common Collateral; provided that any action described in the foregoing clauses (i) and (ii) does not violate Section 5.2. Each Term Debt Representative, on behalf of itself and the other Term Debt Secured Parties, further agrees that, prior to the ABL Obligations Payment Date, none of them shall support any other Person asserting or enforcing any claim under Section 506(c) of the Bankruptcy Code (or any other similar or equivalent provision under applicable Bankruptcy Law) or otherwise that is senior to or on a parity with the ABL Liens for costs or expenses of preserving or disposing of any ABL Priority Collateral. Notwithstanding anything to the contrary set forth in this Section and in Section 5.2(a)(i)(y), but subject to all other provisions of this Agreement (including Section 5.2(a)(i)(x) and Section 5.3), in any Insolvency Proceeding, if the ABL Secured Parties (or any subset thereof) are granted adequate protection consisting of additional collateral that constitutes ABL Priority Collateral (with replacement liens on such additional collateral) and superpriority claims in connection with any ABL DIP Financing or use of cash collateral, and the ABL Secured Parties do not object to the adequate protection being provided to them, then in connection with any such ABL DIP Financing or use of cash collateral each Term Debt Representative, on behalf of itself and any of the Term Debt Secured Parties, may, as adequate protection of their interests in the ABL Priority Collateral, seek or accept (and the ABL Representatives and the ABL Secured Parties shall not object to) adequate protection consisting solely of (x) a replacement Lien on the same additional collateral, subordinated to the Liens securing the ABL Obligations and such ABL DIP Financing on the same basis as the other Term Debt Liens on the ABL Priority Collateral are so subordinated to the ABL Obligations under this Agreement and (y) superpriority claims junior in all respects to the superpriority claims granted to the ABL Secured Parties.
(b)Each ABL Representative, on behalf of itself and the other ABL Secured Parties, agrees that, prior to the Term Debt Obligations Payment Date, so long as each Term Debt Representative and the other Term Debt Secured Parties comply with Section 5.4(a), none of them shall object, contest, or support any other Person objecting to or contesting, (i) any request by any Term Debt Representative or the other Term Debt Secured Parties for adequate protection of its interest in the Common Collateral or any adequate protection provided to any Term Debt Representative or the other Term Debt Secured Parties, (ii) any objection by any Term Debt Representative or any other Term Debt Secured Parties to any motion, relief, action or proceeding based on a claim of a lack of adequate protection in the Common Collateral or (iii) the periodic payment of amounts equal to interest, fees, expenses or other amounts provided to any Term Debt Representative or any other Term Debt Secured Party as adequate protection of its interest in the Common Collateral; provided that any action described in the foregoing clauses (i) and (ii) does not violate Section
5.2. Each ABL Representative, on behalf of itself and the other ABL Secured Parties, further agrees that, prior to the Term Debt Obligations Payment Date, none of them shall support any other Person asserting or enforcing any claim under Section 506(c) of the Bankruptcy Code (or any other similar or equivalent provision under applicable Bankruptcy Law) or otherwise that is senior to or on a parity with the Term Debt Liens for costs or expenses of preserving or disposing of any Term Debt Priority Collateral. Notwithstanding anything to the contrary set forth in this Section and in Section 5.2(b)(i)(y), but subject to all other provisions of this Agreement (including Section 5.2(b)(i)(x) and Section 5.3), in any Insolvency Proceeding, if the Term Debt Secured Parties (or any subset thereof) are granted adequate protection
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consisting of additional collateral that constitutes Term Debt Priority Collateral (with replacement liens on such additional collateral) and superpriority claims in connection with any Term Debt DIP Financing or use of cash collateral, and the Term Debt Secured Parties do not object to the adequate protection being provided to them, then in connection with any such Term Debt DIP Financing or use of cash collateral each ABL Representative, on behalf of itself and any of the ABL Secured Parties, may, as adequate protection of their interests in the Term Debt Priority Collateral, seek or accept (and the Term Debt Representatives and the Term Debt Secured Parties shall not object to) adequate protection consisting solely of (x) a replacement Lien on the same additional collateral, subordinated to the Liens securing the Term Debt Obligations and such Term Debt DIP Financing on the same basis as the other ABL Liens on the Term Debt Priority Collateral are so subordinated to the Term Debt Obligations under this Agreement and (y) superpriority claims junior in all respects to the superpriority claims granted to the Term Debt Secured Parties.
5.30No Contest. Each Junior Representative, on behalf of itself and the Junior Secured Parties, agrees that, prior to the Senior Obligations Payment Date, none of them shall contest (or support any other Person contesting) (a) any request by any Senior Representative or any Senior Secured Party for adequate protection of its interest in the Senior Collateral (unless in contravention of Section 5.2(a) or (b), as applicable), or (b) any objection by any Senior Representative or any Senior Secured Party to any motion, relief, action, or proceeding based on a claim by any Senior Representative or any Senior Secured Party that its interests in the Senior Collateral (unless in contravention of Section 5.2 (a) or (b), as applicable) are not adequately protected (or any other similar request under any law applicable to an Insolvency Proceeding), so long as any Liens granted to any Senior Representative or any Senior Secured Party as adequate protection of its interests are subject to this Agreement.
5.31Avoidance Issues. If any Senior Secured Party is required in any Insolvency Proceeding or otherwise to disgorge, turn over or otherwise pay to the estate of any Loan Party, because such amount was avoided or ordered to be paid or disgorged for any reason, including without limitation because it was found to be a fraudulent or preferential transfer, any amount (a “Recovery”), whether received as proceeds of security, enforcement of any right of set-off or otherwise, then the Senior Obligations shall be reinstated to the extent of such Recovery and deemed to be outstanding as if such payment had not occurred and the Senior Obligations Payment Date shall be deemed not to have occurred. If this Agreement shall have been terminated prior to such Recovery, this Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair or otherwise affect the obligations of the parties hereto. The Junior Secured Parties agree that none of them shall be entitled to benefit from any avoidance action affecting or otherwise relating to any distribution or allocation made in accordance with this Agreement, whether by preference or otherwise, it being understood and agreed that the benefit of such avoidance action otherwise allocable to them shall instead be allocated and turned over for application in accordance with the priorities set forth in this Agreement.
5.32Asset Dispositions in an Insolvency Proceeding. No Junior Representative nor any other Junior Secured Party shall, in an Insolvency Proceeding or otherwise, oppose any sale or disposition of any Senior Collateral that is supported by the Senior Secured Parties, and each Junior Representative and each other Junior Secured Party will be deemed to have consented under Section 363 of the Bankruptcy Code (or any other similar or equivalent provision under applicable Bankruptcy Law) (and otherwise) to any sale of any Senior Collateral supported by the Senior Secured Parties and to have released their Liens on such assets so long as the Lien of each Secured Party attaches to the proceeds of any such sale with the same priority as provided under this Agreement in respect of such Senior Collateral; provided that this Section
5.7 shall not apply to any case of a sale or disposition of Real Property unless the Controlling ABL Representative has received at least 30 days prior notice of the consummation of any such sale.
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5.33Other Matters. To the extent that any Senior Representative or any Senior Secured Party has or acquires rights under Section 363 or Section 364 of the Bankruptcy Code (or any other similar or equivalent provision under applicable Bankruptcy Law) with respect to any of the Junior Collateral, such Senior Representative agrees, on behalf of itself and the other Senior Secured Parties, not to assert any of such rights without the prior written consent of each Junior Representative; provided that if requested by each Junior Representative, such Senior Representative shall timely exercise such rights in the manner requested by the Junior Representatives, including any rights to payments in respect of such rights.
5.34Post-Petition Interest. No Junior Representative nor any Junior Secured Party shall oppose or seek to challenge any claim by any Senior Representative or any other Senior Secured Party for allowance in any Insolvency Proceeding of Senior Obligations consisting of Post-Petition Interest to the extent of the value of the Liens in favor of the Senior Representatives and the other Senior Secured Parties, without regard to the existence of the Liens of any Junior Representative on behalf of the Junior Secured Parties on the Common Collateral.
5.35Effectiveness in Insolvency Proceedings. This Agreement, which the parties hereto expressly acknowledge is a “subordination agreement” under section 510(a) of the Bankruptcy Code (or any other similar or equivalent provision under applicable Bankruptcy Law), shall be effective before, during and after the commencement of an Insolvency Proceeding.
SECTION 6. Term Debt Documents and ABL Documents.
(a)Each Loan Party and each Term Debt Representative, on behalf of itself and the Term Debt Secured Parties, agrees that it shall not at any time execute or deliver any amendment or other modification to any of the Term Debt Documents inconsistent with or in violation of this Agreement.
(b)Each Loan Party and each ABL Representative, on behalf of itself and the ABL Secured Parties, agrees that it shall not at any time execute or deliver any amendment or other modification to any of the ABL Documents inconsistent with or in violation of this Agreement.
(c)In the event any Senior Representative enters into any amendment, waiver or consent in respect of any of the Senior Security Documents which is not materially adverse to the Junior Secured Parties for the purpose of adding to, or deleting from, or waiving or consenting to any departures from any provisions of, any Senior Security Document or changing in any manner the rights of any parties thereunder, in each case solely with respect to any Senior Collateral, then such amendment, waiver or consent shall apply automatically to any comparable provision of the Comparable Security Document without the consent of or action by any Junior Secured Party (with all such amendments, waivers and modifications subject to the terms hereof); provided that, (i) no such amendment, waiver or consent shall have the effect of removing assets subject to the Lien of any Junior Security Document, except to the extent that a release of such Lien is permitted by Section 4.2, (ii) any such amendment, waiver or consent that materially and adversely affects the rights of the Junior Secured Parties and does not affect the Senior Secured Parties in a like or similar manner shall not apply to the Junior Security Documents without the consent of each Junior Representative,
(iii) no such amendment, waiver or consent with respect to any provision applicable to any Junior Representative under the Junior Loan Documents shall be made without the prior written consent of such Junior Representative and (iv) notice of such amendment, waiver or consent shall be given to each Junior Representative no later than 30 days after its effectiveness, provided that the failure to give such notice shall not affect the effectiveness and validity thereof.
SECTION 7. Purchase Options.
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7.1Notice of Exercise. If (i) an “Event of Default” under the ABL Documents remains uncured or unwaived for at least 45 consecutive days and the requisite ABL Lenders have not agreed to forbear from the exercise of remedies (or, if earlier, within five Business Days after the Controlling ABL Representative notifies the Controlling Term Debt Representative that it shall exercise remedies), (ii) the commitments under the ABL Documents have been terminated and the ABL Obligations have been accelerated in accordance with the terms of the ABL Documents or (iii) an Insolvency Proceeding has commenced, all or a portion of the Term Debt Creditors, acting through the Controlling Term Debt Representative, shall have the option at any time upon five Business Days’ prior written notice to the Controlling ABL Representative to purchase all of the ABL Obligations (including unfunded commitments, if any, under the ABL Documents) from the ABL Secured Parties. Such notice from such Term Debt Creditors to the Controlling ABL Representative shall be irrevocable.
7.2Purchase and Sale. On the date specified by the relevant Term Debt Creditors in the notice contemplated by Section 7.1(a) above (which shall not be less than five (5) Business Days, nor more than twenty (20) calendar days, after the receipt by the Controlling ABL Representative of the notice of the relevant Term Debt Creditor’s election to exercise such option), the ABL Creditors shall sell to the relevant Term Debt Creditors, and the relevant Term Debt Creditors shall purchase from the ABL Lenders, the ABL Obligations (including unfunded commitments, if any, under the ABL Documents), provided that, the ABL Representatives and the ABL Secured Parties shall retain all rights to be indemnified or held harmless by the Loan Parties in accordance with the terms of the ABL Documents but shall not retain any rights to the security therefor.
7.3Payment of Purchase Price. Upon the date of such purchase and sale contemplated by Section 7.1 above, the relevant Term Debt Secured Parties shall (a) pay to each applicable ABL Representative for the benefit of the ABL Secured Parties as the purchase price therefor the full amount of all the ABL Obligations then outstanding and unpaid (including principal, interest, fees and expenses, including reasonable attorneys’ fees and legal expenses but specifically excluding any prepayment premium, termination or similar fees), (b) furnish cash collateral to each applicable ABL Representative in a manner and in such amounts as is reasonably necessary to secure such ABL Representative and the ABL Secured Parties, along with the applicable letter of credit issuing banks and applicable affiliates in connection with any issued and outstanding letters of credit (not to exceed 103% of the aggregate undrawn face amount of such letters of credit) and cash management obligations secured by the ABL Documents,
(c)with respect to Secured Obligations in respect of Swap Agreements and Banking Services Obligations, furnish cash collateral to each applicable ABL Representative in the amount that would be payable by the relevant Loan Party thereunder if it were to terminate such Swap Agreements or agreements governing such Banking Services Obligations on the date of such purchase, (d) agree to reimburse each applicable ABL Representative and the ABL Secured Parties, along with any letter of credit issuing banks for any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) in connection with any commissions, fees, costs or expenses related to any issued and outstanding letters of credit as described above and any checks or other payments provisionally credited to the ABL Obligations, and/or as to which such ABL Representative has not yet received final payment, (e) agree to reimburse the ABL Secured Parties and the applicable letter of credit issuing banks, in respect of indemnification obligations of the Loan Parties under the ABL Documents as to matters or circumstances known to the ABL Representative at the time of such purchase and sale, which would reasonably be expected to result in any loss, cost, damage or expense (including reasonable attorneys’ fees and legal expenses) to the ABL Secured Parties or letter of credit issuing banks, as applicable, and (f) agree to indemnify, defend and hold harmless the ABL Representative, the other ABL Secured Parties and the applicable letter of credit issuing banks, from and against any loss, liability, claim, damage or expense (including reasonable fees and expenses of legal counsel) of whatever kind or nature (regardless of their merit) demanded, asserted or claimed, arising out of or related to any claim asserted by a third party in respect of the ABL Obligations as a direct or indirect
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result of any acts by any Term Debt Secured Party occurring after the date of such purchase. Such purchase price and cash collateral shall be remitted by wire transfer in federal funds to such bank account as the applicable ABL Representative may designate in writing for such purpose.
7.4Limitation on Representations and Warranties. Such purchase shall be expressly made without representation or warranty of any kind by any selling party (or any other ABL Secured Party) and without recourse of any kind, except that the selling party shall represent and warrant (it being expressly agreed and acknowledged that in no event shall any ABL Secured Party, in its capacity as agent for the applicable secured parties, be required to make any such representations and warranties, even if acting as the seller party): (a) the amount of the ABL Obligations being purchased from it, (b) that such ABL Secured Party owns the ABL Obligations free and clear of any Liens or encumbrances and (c) that such ABL Secured Party has the right to assign such ABL Obligations and the assignment is duly authorized.
SECTION 8. Reliance; Waivers; etc.
8.1Reliance. The ABL Documents are deemed to have been executed and delivered, and all extensions of credit thereunder are deemed to have been made or incurred, in reliance upon this Agreement. Each Term Debt Representative, on behalf of it itself and the other Term Debt Secured Parties, expressly waives all notice of the acceptance of and reliance on this Agreement by each ABL Representative and the other ABL Secured Parties. The Term Debt Documents are deemed to have been executed and delivered and all extensions of credit thereunder are deemed to have been made or incurred, in reliance upon this Agreement. Each ABL Representative, on behalf of itself and the other ABL Secured Parties, expressly waives all notices of the acceptance of and reliance on this Agreement by each Term Debt Representative and the other Term Debt Secured Parties.
8.2No Warranties or Liability. Each Term Debt Representative, on behalf of it itself and the other Term Debt Secured Parties, and each ABL Representative, on behalf of itself and the other ABL Secured Parties, acknowledge and agree that neither has made any representation or warranty with respect to the execution, validity, legality, completeness, collectibility or enforceability of any other ABL Document or any Term Debt Document. Except as otherwise provided in this Agreement, each Term Debt Representative and each ABL Representative will be entitled to manage and supervise the respective extensions of credit to any Loan Party in accordance with law and their usual practices, modified from time to time as they deem appropriate.
8.3No Waivers. No right or benefit of any party hereunder shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of such party or any other party hereto or by any noncompliance by any Loan Party with the terms and conditions of any of the ABL Documents or the Term Debt Documents.
SECTION 9. Obligations Unconditional. All rights, interests, agreements and obligations hereunder of each Senior Representative and the Senior Secured Parties in respect of any Collateral and each Junior Representative and the Junior Secured Parties in respect of such Collateral shall remain in full force and effect regardless of:
(a)any lack of validity or enforceability of any Senior Document or any Junior Document and regardless of whether the Liens of the Senior Representatives and Senior Secured Parties are not perfected or are voidable for any reason;
(b)any change in the time, manner or place of payment of, or in any other terms of, all or any of the Senior Obligations or Junior Obligations, or any amendment or waiver or other modification,
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including any increase in the amount thereof, whether by course of conduct or otherwise, of the terms of any Senior Document or any Junior Document;
(c)any exchange, release or lack of perfection of any Lien on any Collateral or any other asset, or any amendment, waiver or other modification, whether in writing or by course of conduct or otherwise, of all or any of the Senior Obligations or Junior Obligations or any guarantee thereof;
(d)the commencement of any Insolvency Proceeding in respect of any Loan Party; or
(e)any other circumstances which otherwise might constitute a defense available to, or a discharge of, any Loan Party in respect of any Secured Obligation or of any Junior Secured Party in respect of this Agreement.
SECTION 10. European Collateral Agent
10.63Authorization and Action.
(a)Each Agent, in each case on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, hereby irrevocably appoints the European Collateral Agent and its successors and assigns to serve as the collateral agent in respect of the Foreign Collateral (other than Collateral located in or otherwise governed by the laws of France or any province or territory of Canada) under its Applicable Debt Documents and each Agent, in each case on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, authorizes the European Collateral Agent to take such actions as agent on its behalf and to exercise such powers under this Agreement and the other Applicable Debt Documents as are delegated to the European Collateral Agent under such agreements and to exercise such powers as are reasonably incidental thereto. In addition, to the extent required under the laws of any jurisdiction other than within the United States, each Agent, in each case on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, hereby grants to the European Collateral Agent any required powers of attorney to execute and enforce any Applicable Security Document governed by the laws of such jurisdiction on such Agent’s or Secured Party’s behalf. Each Agent, in each case on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, exempts the European Collateral Agent from the restrictions pursuant to Section 181 Civil Code (Bürgerliches Gesetzbuch) and similar restrictions applicable to it pursuant to any other applicable law, in each case to the extent legally possible to such Agent or Secured Party. Any Agent or Secured Party which cannot grant such exemption shall notify the European Collateral Agent accordingly and, upon request of the European Collateral Agent, either act in accordance with the terms of this Agreement and/or any other Applicable Debt Document as required pursuant to this Agreement and/or such other Applicable Debt Document or grant a special power of attorney to a party acting on its behalf, in a manner that is not prohibited pursuant to Section 181 of the German Civil Code (Bürgerliches Gesetzbuch) and/or any other applicable laws. Without limiting the foregoing, each Agent, in each case on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, hereby authorizes the European Collateral Agent to execute and deliver, and to perform its obligations under, each of the Applicable Debt Documents, and to exercise all rights, powers and remedies that each Agent may have under such Applicable Debt Documents, expressly including appearing before Spanish notaries to grant or execute any Spanish Public Document or private document related to this mandate and, specifically, those deemed necessary or appropriate according to the mandate received (including, but not limited to, amendments or ratifications of the Debt Documents, all the above with express faculties of self-contracting (subcontratación), sub-empowering (subdelegación) or multiple representation (multirepresentación). In relation to the Belgian Security Documents, each Secured Party irrevocably appoints the European Collateral Agent as its representative in accordance with (a) Article 5 of the
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Belgian Financial Collateral Law, and (b) Article 3 of the Belgian MAS Law, which appointment is hereby accepted.
(b)As to any matters not expressly provided for herein and in the other Applicable Debt Documents (including enforcement or collection), the European Collateral Agent shall not be required to exercise any discretion or take any action, but shall be required to act or to refrain from acting (and shall be fully protected in so acting or refraining from acting) with respect to a particular class of Secured Obligations upon the written instructions of the Agent with respect to such class of Secured Obligations (it being understood such Agent’s instructions shall direct the European Collateral Agent in compliance with this Agreement), and, unless and until revoked in writing, such instructions shall be binding upon such Agent and the Secured Parties with respect to its class of Secured Obligations; provided, however, that the European Collateral Agent shall not be required to take any action that (i) the European Collateral Agent in good faith believes exposes it to liability unless the European Collateral Agent receives an indemnification and is exculpated in a manner satisfactory to it from the Secured Parties with respect to such action or (ii) is contrary to this Agreement or any other Debt Document or applicable law, including any action that may be in violation of the automatic stay under any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors or that may effect a forfeiture, modification or termination of property of a Secured Party constituting a “Defaulting Lender” (or similar term) as defined in any Debt Document in violation of any requirement of law relating to bankruptcy, insolvency or reorganization or relief of debtors; provided, further, that the European Collateral Agent may seek clarification or direction from the applicable Agent prior to the exercise of any such instructed action and may refrain from acting until such clarification or direction has been provided. Except as expressly set forth in the Debt Documents, the European Collateral Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any Loan Party, any subsidiary or any affiliate of any of the foregoing that is communicated to or obtained by the Person serving as European Collateral Agent or any of its affiliates in any capacity. Nothing in this Agreement shall require the European Collateral Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(c)In performing its functions and duties hereunder and under the other Debt Documents, the European Collateral Agent is acting solely on behalf of the Secured Parties, and its duties are entirely mechanical and administrative in nature. Without limiting the generality of the foregoing:
(liv)the European Collateral Agent does not assume and shall not be deemed to have assumed any obligation or duty or any other relationship as the agent, fiduciary or trustee of or for any Secured Party or holder of any other obligation other than as expressly set forth herein and in the other Debt Documents, regardless of whether a Default (as defined in the applicable Debt Document) or an Event of Default has occurred and is continuing (and it is understood and agreed that the use of the term “agent” (or any similar term) herein or in any other Debt Document with reference to the European Collateral Agent is not intended to connote any fiduciary duty or other implied (or express) obligations arising under agency doctrine of any applicable law, and that such term is used as a matter of market custom and is intended to create or reflect only an administrative relationship between contracting parties); additionally, each Agent, on behalf of itself and the other Secured Parties, agrees that it will not assert any claim against the European Collateral Agent based on an alleged breach of fiduciary duty by the European Collateral Agent in connection with this Agreement and/or the transactions contemplated hereby;
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(lv)where the European Collateral Agent is required or deemed to act as a trustee in respect of any Collateral over which a security interest has been created pursuant to a Debt Document expressed to be governed by the laws of England and Wales, or is required or deemed to hold any Collateral “on trust” pursuant to the foregoing, the obligations and liabilities of the European Collateral Agent to the Secured Parties in its capacity as trustee shall be excluded to the fullest extent permitted by applicable law;
(lvi)to the extent that English law is applicable to the duties of the European Collateral Agent under any of the Debt Documents, Section 1 of the Trustee Act 2000 of the United Kingdom shall not apply to the duties of the European Collateral Agent in relation to the trusts constituted by that Credit Document; where there are inconsistencies between the Trustee Act 1925 or the Trustee Act 2000 of the United Kingdom and the provisions of this Agreement or such Debt Document, the provisions of this Agreement shall, to the extent permitted by applicable law, prevail and, in the case of any inconsistency with the Trustee Act 2000 of the United Kingdom, the provisions of this Agreement shall constitute a restriction or exclusion for the purposes of that Act; and
(lvii)nothing in this Agreement or any Debt Document shall require the European Collateral Agent to account to any Secured Party for any sum or the profit element of any sum received by the European Collateral Agent for its own account.
(d)The European Collateral Agent may perform any of its duties and exercise its rights and powers hereunder or under any other Debt Document by or through any one or more sub-agents appointed by the European Collateral Agent. The European Collateral Agent and any such sub-agent may perform any of their respective duties and exercise their respective rights and powers through their respective Related Parties. The exculpatory provisions of this Section 10 shall apply to any such sub-agent and to the Related Parties of the European Collateral Agent and any such sub-agent, and shall apply to their respective activities pursuant to this Agreement. The European Collateral Agent shall not be responsible for the negligence or misconduct of any sub agent except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the European Collateral Agent acted with gross negligence or willful misconduct in the selection of such sub-agent.
(e)The provisions of this Section 10 are solely for the benefit of the European Collateral Agent, the Agents and the Secured Parties, and, except solely to the extent of any Loan Party’s right to consent pursuant to and subject to the conditions set forth in this Section 10, no Loan Party nor any subsidiary thereof, or any of their respective affiliates, shall have any rights as a third party beneficiary under any such provisions. Each Secured Party, whether or not a party hereto, will be deemed, by its acceptance of the benefits of the Collateral provided under the Debt Documents, to have agreed to the provisions of this Section 10.
10.64European Collateral Agent’s Reliance, Limitation of Liability, Etc.
(a)Neither the European Collateral Agent nor any of its Related Parties shall be (i) liable for any action taken or omitted to be taken by the European Collateral Agent or any of its Related Parties under or in connection with this Agreement or the other Debt Documents (x) with the consent of or at the request of any Agent with respect to its Applicable Debt Documents or (y) in the absence of its own gross negligence or willful misconduct (such absence to be presumed unless otherwise determined by a court of competent jurisdiction by a final and non-appealable judgment) or (ii) responsible in any manner to any of the Secured Parties for any recitals, statements, representations or warranties made by any Loan Party or any officer thereof contained in this Agreement or any other Debt Document or in any certificate, report,
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statement or other document referred to or provided for in, or received by the European Collateral Agent under or in connection with, this Agreement or any other Debt Document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Debt Document (including, for the avoidance of doubt, in connection with the European Collateral Agent’s reliance on any Electronic Signature transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page) or for any failure of any Loan Party to perform its obligations hereunder or thereunder.
(b)The European Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Debt Document, (ii) the contents of any certificate, report or other document delivered thereunder or in connection therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth in any Debt Document or the occurrence of any Default (as defined in any Debt Document) or Event of Default, (iv) the sufficiency, validity, enforceability, effectiveness or genuineness of any Debt Document or any other agreement, instrument or document, (v) the satisfaction of any condition set forth in any Debt Document, other than to confirm receipt of items (which on their face purport to be such items) expressly required to be delivered to the European Collateral Agent or satisfaction of any condition that expressly refers to the matters described therein being acceptable or satisfactory to the European Collateral Agent or (vi) the creation, perfection or priority of Liens on the Collateral.
(c)Without limiting the foregoing, the European Collateral Agent (i) may consult with independent legal counsel, independent public accountants and other experts selected by it, and shall not be liable for any action taken or omitted to be taken in good faith by it in accordance with the advice of such counsel, accountants or experts, (ii) makes no warranty or representation to any Secured Party and shall not be responsible to any Secured Party for any statements, warranties or representations made by or on behalf of any Loan Party in connection with this Agreement or any other Debt Document and (iii) shall be entitled to rely on, and shall incur no liability under or in respect of this Agreement or any other Debt Document by acting upon, any notice, consent, certificate or other instrument or writing (which writing may be a fax, any electronic message, Internet or intranet website posting or other distribution) or any statement made to it orally or by telephone and believed by it to be genuine and signed or sent or otherwise authenticated by the proper party or parties (whether or not such Person in fact meets the requirements set forth in the Debt Documents for being the maker thereof).
(d)Each Secured Party will be responsible for carrying out any Spanish formalities required under Spanish law pursuant to the terms of this Agreement or the Security Documents governed by Spanish law (including, but not limited to, appearing before Spanish Public notaries to grant or execute any public or private deed in the terms agreed under any Debt Document or Security Document).
10.65Successor European Collateral Agent.
(a)The European Collateral Agent may resign at any time by giving 30 days’ prior written notice thereof to the Agents, whether or not a successor European Collateral Agent has been appointed. Upon any such resignation, (i) such European Collateral Agent may appoint one of its affiliates as a successor European Collateral Agent and (ii) if such Agent has not appointed one of its affiliates as a successor European Collateral Agent pursuant to clause (i) above, the ABL Agent and the Agent for the series of Term Debt Obligations represented by the Controlling Term Debt Representative shall have the right to appoint a successor Agent. In either case, (other than if the European Collateral Agent appoints one of its affiliates as a successor European Collateral Agent pursuant to clause (i) above), such appointment shall be subject to the prior written approval of the Company (which approval may not be
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unreasonably withheld and shall not be required while an Event of Default has occurred and is continuing). Upon the acceptance of any appointment as European Collateral Agent by a successor European Collateral Agent, such successor European Collateral Agent shall succeed to, and become vested with, all the rights, powers, privileges and duties of the retiring European Collateral Agent. Upon the acceptance of appointment as European Collateral Agent by a successor European Collateral Agent, the retiring European Collateral Agent shall be discharged from its duties and obligations under this Agreement and the other Debt Documents. Prior to any retiring European Collateral Agent’s resignation hereunder as European Collateral Agent, the retiring European Collateral Agent shall take such action as may be reasonably necessary to assign to the successor European Collateral Agent its rights as European Collateral Agent under the Debt Documents.
(b)Notwithstanding paragraph (a) of this Section 10.3, in the event no successor European Collateral Agent shall have been so appointed and shall have accepted such appointment within 30 days after the retiring European Collateral Agent gives notice of its intent to resign, the retiring European Collateral Agent may give notice of the effectiveness of its resignation to the Agents and the Loan Parties, whereupon, on the date of effectiveness of such resignation stated in such notice, (i) the retiring European Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Debt Documents; provided that, solely for purposes of maintaining any security interest granted to such European Collateral Agent under any Security Document for the benefit of the Secured Parties, such retiring European Collateral Agent shall continue to be vested with such security interest as collateral agent for the benefit of the Secured Parties and continue to be entitled to the rights set forth in such Security Document and Debt Document (including, for the avoidance of doubt, as creditor of the Parallel Debt), and, in the case of any Collateral in the possession of such European Collateral Agent, shall continue to hold such Collateral, in each case until such time as a successor European Collateral Agent is appointed and accepts such appointment in accordance with this Section 10.3 (it being understood and agreed that the retiring European Collateral Agent shall have no duty or obligation to take any further action under any Security Document, including any action required to maintain the perfection of any such security interest), and (ii) the Agents shall succeed to and become vested with all the rights, powers, privileges and duties of the retiring European Collateral Agent; provided that all notices and other communications required or contemplated to be given or made to the European Collateral Agent shall directly be given or made to each Agent. Following the effectiveness of the European Collateral Agent’s resignation from its capacity as such, the provisions of this Section 10, as well as any exculpatory, reimbursement and indemnification provisions set forth in any other Debt Document, shall continue in effect for the benefit of such retiring European Collateral Agent, its sub agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring European Collateral Agent was acting as European Collateral Agent and in respect of the matters referred to in the proviso under clause (a) above. The benefit of the Collateral and of the Security Documents shall automatically transfer to any assignee or transferee (by way of novation or otherwise) of part or all of the obligations expressed to be secured by the Collateral. For the purpose of Article 1278 and Article 1281 of the Old Belgian Civil Code (and, to the extent applicable, any similar provisions of foreign law), the European Collateral Agent, each Agent, in each case on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, and each of the Loan Parties hereby expressly reserve the preservation of the Collateral and of the Security Documents in case of assignment, novation, amendment or any other transfer or change of the obligations expressed to be secured by the Collateral (including, without limitation, an extension of the term or an increase of the amount of such obligations or the granting of additional credit) or of any change of any of the parties to this Agreement or any other Debt Document.
10.66Right to Indemnity. Each Agent of each series of Secured Obligations, on behalf of the Secured Parties under such class of Secured Obligations, ratably (based on the aggregate outstanding
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principal amount of each series of Secured Obligations) and severally agrees to indemnify the European Collateral Agent and each of its affiliates, and each of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents and sub-agents, to the extent that the European Collateral Agent shall not have been reimbursed by any Loan Party (but without limiting such Loan Party’s reimbursement obligations hereunder), for and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses (including fees and disbursements of financial and legal advisors) or disbursements of any kind or nature whatsoever which may be imposed on, incurred by or asserted against the European Collateral Agent or any of its affiliates, or any of the foregoing’s officers, partners, directors, trustees, employees, advisors, agents or sub-agents, in exercising its powers, rights and remedies or performing its duties hereunder or under the other Common Security Documents or otherwise in its capacity as the European Collateral Agent in any way relating to or arising out of this Agreement or the other Common Security Documents; provided no Secured Party shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements resulting from the European Collateral Agent’s gross negligence or willful misconduct as determined in a final and non-appealable decision of a court of competent jurisdiction. If any indemnity furnished to the European Collateral Agent for any purpose shall, in the opinion of the European Collateral Agent, be insufficient or become impaired, the European Collateral Agent may call for additional indemnity and cease, or not commence, to do the acts indemnified against until such additional indemnity is furnished; provided in no event shall this sentence require any Secured Party to indemnify the European Collateral Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement in excess of such Secured Party’s ratable share thereof; and provided further this sentence shall not be deemed to require any Secured Party to indemnify the European Collateral Agent against any liability, obligation, loss, damage, penalty, action, judgment, suit, cost, expense or disbursement described in the proviso in the immediately preceding sentence. Without limiting the foregoing, each Secured Party agrees to reimburse the European Collateral Agent promptly upon demand for its ratable share of any out-of-pocket expenses (including fees, expenses and disbursements of financial and legal advisors) incurred by the European Collateral Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement or the other Common Security Documents, to the extent that the European Collateral Agent is not reimbursed for such expenses by any Loan Party. Amounts payable pursuant to this Section 10.4 shall be payable on demand.
10.67Direction of European Collateral Agent.
(a)The European Collateral Agent and each Agent (on behalf of itself and the Secured Parties with respect to its class of Secured Obligations) acknowledge and agree that: (i) with respect to any matter under this Agreement or any other Debt Document with respect to which the European Collateral Agent is required to take action (or refrain from taking action) or otherwise exercise discretion with respect to ABL Priority Collateral, the European Collateral Agent shall follow the directions solely of the ABL Administrative Agent in connection with such matter (it being agreed such directions shall be subject to any rights of the Junior Secured Parties exercised pursuant to Section 3.2) and (ii) if the European Collateral Agent receives conflicting instructions from the ABL Administrative Agent and any other Agent concerning ABL Priority Collateral, the instructions from the ABL Administrative Agent shall control.
(b)The European Collateral Agent and each Agent (on behalf of itself and the Secured Parties with respect to its class of Secured Obligations) acknowledge and agree that: (i) with respect to any matter under this Agreement or any other Debt Document with respect to which the European Collateral Agent is required to take action (or refrain from taking action) or otherwise exercise discretion
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with respect to Term Debt Priority Collateral, the European Collateral Agent shall follow the directions solely of the Agent for the series of Term Debt Obligations represented by the Controlling Term Debt Representative in connection with such matter (it being agreed such directions shall be subject to any rights of the Junior Secured Parties exercised pursuant to Section 3.2) and (ii) if the European Collateral Agent receives conflicting instructions from the Agent for the series of Term Debt Obligations represented by the Controlling Term Debt Representative and any other Agent concerning ABL Priority Collateral, the instructions from the Agent for the series of Term Debt Obligations represented by the Controlling Term Debt Representative shall control.
10.68UK Security Trustee. Notwithstanding any other provision of this Agreement, each Agent, on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, irrevocably appoints the European Collateral Agent to act as its trustee under and in connection with each Applicable Security Document governed by the laws of England and Wales on the terms and conditions set out in any such Applicable Security Document to hold the assets subject to the security thereby created as trustee for the Secured Parties with respect to its class of Secured Obligations on the trusts and other terms contained in any such Security Document. Each Agent, on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, authorizes the European Collateral Agent to exercise the rights, remedies, power and discretions, specifically given to the European Collateral Agent under or in respect of the Applicable Security Documents governed by the laws of England and Wales, together with any rights, remedies, power and discretions, incidental thereto. In addition, when acting in the capacity of trustee for the Secured Parties, the European Collateral Agent shall have all the rights, remedies, protections and benefits of and in favor of the European Collateral Agent contained in this Section 10. Any reference in this Agreement to Liens stated to be granted by any Loan Party incorporated under the laws of England and Wales in favor of the European Collateral Agent shall be construed so as to include a reference to Liens granted in favor of the European Collateral Agent in its capacity as security trustee of the Secured Parties on the trusts and other terms contained in any Security Document governed by the laws of England and Wales. Nothing in this Section 10 shall require the European Collateral Agent to act as a trustee at common law or to hold any property on trust in any jurisdiction outside England and Wales that may not operate under principles of trust or where such trust would not be recognized or its effects would not be enforceable.
10.69[Reserved].
10.70Italian Law Debt Documents. In relation to the Debt Documents governed by Italian law, each Agent, on behalf of itself and also in its capacity as mandatario con rappresentanza in the name and on behalf (in nome e per conto) of the Secured Parties with respect to its class of Secured Obligations, irrevocably (i) appoints the European Collateral Agent to be its and the other Secured Parties’ agent (mandatario con rappresentanza) for the purpose of executing in its and the other Secured Parties’ name and on its behalf any Debt Document which is expressed to be governed by Italian law; (ii) grants the European Collateral Agent the powers to negotiate and approve the terms and conditions of such Debt Documents, execute any other agreement or instruments, give or receive any notice and take any other action in relation to the creation, perfection, maintenance, confirmation, extension, enforcement and release, in whole or in part, of the security created thereunder, in each case in the name and on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, (iii) consents that the European Collateral Agent may act as its and the other Secured Parties’ agent (mandatario con rappresentanza) in all cases of conflict of interest and self-dealing, in accordance with Article 1394 of the Italian Civil Code and execute each Debt Documents expressed to be executed by the European Collateral Agent on its and the other Secured Parties’ behalf including to execute any document with itself (contratto con se stesso) in accordance with Article 1395 of the Italian Civil Code; (iv) pursuant to Article 2414-bis, third paragraph, of the Italian Civil Code, to the extent applicable, appoints the European
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Collateral Agent to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil Code, to the extent applicable, and accepts and is bound also on behalf of the other Secured Parties with respect to its class of Secured Obligations by the appointment of the European Collateral Agent to act as representative (rappresentante) pursuant to article 2414-bis, third paragraph of the Italian Civil Code, to the extent applicable, and (ii) consents and agrees for itself and the other Secured Parties with respect to its class of Secured Obligations to the terms of any collateral document (including, without limitation, the provisions providing for foreclosure and release of any collateral and authorising the European Collateral Agent to enter into any collateral document on its behalf and on behalf the other Secured Parties with respect to its class of Secured Obligations) as the same may be in effect or may be amended from time to time in accordance with its terms and authorises and directs the European Collateral Agent to enter into any collateral document and to perform its obligations and exercise its rights thereunder in accordance therewith for itself and the other Secured Parties with respect to its class of Secured Obligations and (v) consents to the possibility for the European Collateral Agent to delegate and sub-delegate any of its powers under this clause including by appointing third parties agents and/or representatives.
10.71Italian Security Documents. In relation to the Security Documents governed by Italian law and Collateral created or expressed to be created thereunder, (a) each Agent, on behalf of itself and the Secured Parties with respect to its class of Secured Obligations (other than the European Collateral Agent), (i) irrevocably and unconditionally grants to the European Collateral Agent, which accepts, a mandato con rappresentanza (agency with representative powers) pursuant to article 1704 of the Italian Civil Code and appoints it, with the express consent pursuant to articles 1394 and 1395 of the Italian Civil Code, as mandatario con rappresentanza (agent with representative powers) and procuratore speciale (special attorney-in-fact) so that, acting in the name and on behalf of each Secured Party, but also in its own name and on its own interest, it takes all the actions that it considers proper or necessary as provided under this Agreement and executes, also in the name and on behalf of the Secured Parties, the Security Documents governed by Italian law; (ii) grants the European Collateral Agent the power to negotiate and approve the terms and conditions of such Security Documents governed by Italian law and any amendment and/or restatement, confirmation and/or confirmation and extension thereof, execute any other agreement or instrument, give or receive any notice or declaration, identify and specify to third parties the names of the Secured Parties at any given date, and take any other action in relation to the creation, perfection, maintenance, confirmation and/or confirmation and extension, enforcement and release of the security created thereunder and the performance of the Security Documents governed by Italian law and any amendments and/or waivers thereof, in each case in the name and on behalf of the Secured Parties; (iii) confirms that the European Collateral Agent is entitled to release any Security Documents governed by Italian law upon payment in full of any amounts due thereunder or as otherwise permitted or required under the terms of any Applicable Debt Document before the expiry of the applicable clawback or ineffectiveness period, subject to customary comfort documents being delivered to the European Collateral Agent, in accordance with the provisions of the relevant Security Documents governed by Italian law; (iv) confirms that in the event that any Collateral created under the Security Documents governed by Italian law remains registered in the name of an Secured Party after it has ceased to be a Secured Party then the European Collateral Agent shall remain empowered to execute a release of such security in its name and on its behalf; (v) undertakes to grant any additional power of attorney as it might be needed or appropriate for the European Collateral Agent to act in accordance with and within the limits of this Agreement, the Debt Documents and any Security Document governed by Italian law;
(vi) undertakes to ratify and approve any such action taken in the name and on behalf of the Secured Parties by the European Collateral Agent acting in its appointed capacity; and (vii) authorizes the European Collateral Agent to, in its name and on its behalf, exercise such rights, powers and discretions as are delegated to the European Collateral Agent by the terms hereof, the Debt Documents, the Security Documents governed by Italian law together with all rights, powers and discretions as are incidental
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thereto or necessary to give effect to the provisions contained herein; (b) each Agent, on behalf of itself and the Secured Parties with respect to its class of Secured Obligations (other than the European Collateral Agent) (i) acknowledges and agrees that the European Collateral Agent may enter in its name and on its behalf as direct representative into contractual arrangements pursuant to or in connection with the Security Documents governed by Italian law to which the European Collateral Agent is also a party (in its capacity as common representative, mandatario con rappresentanza or otherwise) and expressly authorizes the European Collateral Agent, pursuant to article 1395 of the Italian Civil Code and (ii) confirms that, in relation to this mandato con rappresentanza (agency with representative powers) and to the special power of attorney granted hereunder, the European Collateral Agent may be in a situation of conflict of interests and waives their rights to the exercise of any remedies relating to such conflict (including the ones set out in article 1394 of the Italian Civil Code) and also waives any rights to take action against the European Collateral Agent as a result of such conflict; (c) in respect of any Collateral created or expressed to be created under or pursuant to any Security Documents governed by Italian Law, the European Collateral Agent declares that it shall (to the extent possible under applicable law) hold any of the assets and properties subject to Collateral as agent for, and mandatario con rappresentanza of, the relevant Secured Parties on the terms contained in this Agreement; and (d) each Agent, on behalf of itself and the Secured Parties with respect to its class of Secured Obligations, expressly acknowledges and agrees that the European Collateral Agent will not be a creditor or beneficiary of any parallel debt, nor it will act as trustee, in respect of any Security Documents governed by Italian law.
10.72German Security Documents. With respect to the part of the Collateral secured pursuant to the Security Documents governed by German law (“German Security Agreements”) or any other Collateral created under German law (“German Collateral”):
(a)the European Collateral Agent shall:
(lviii)hold, administer and realise such German Collateral that is transferred or assigned by way of security (Sicherungseigentum/Sicherungsabtretung) or otherwise granted to it and is creating or evidencing a non-accessory security right (nicht akzessorische Sicherheit) in its own name as German law trustee (Treuhänder) for the benefit of the Secured Parties;
(lix)hold, administer, and realise any such German Collateral that is pledged (verpfändet) or otherwise transferred to the European Collateral Agent and is creating or evidencing an accessory security right (akzessorische Sicherheit) as agent.
(b)each Secured Party hereby authorizes and grants a power of attorney (Vollmacht), and each future Secured Party, with respect to any Agent or Representative, by becoming a party to this Agreement, and with respect to any other Secured Party, by its acceptance of the benefits of the Collateral provided under the Debt Documents, authorizes, and grants a power of attorney (Vollmacht) to the European Collateral Agent (whether or not by or through employees or agents) to:
(lx)accept as its representative (Stellvertreter) any pledge or other creation of any accessory security right granted in favor of such Secured Party in connection with the German Security Agreements and to agree to and execute on its behalf as its representative (Stellvertreter) any amendments and/or alterations to any German Security Agreement or any other agreement related to such German Collateral which creates a pledge or any other accessory security right (akzessorische Sicherheit) including the release or confirmation of release of such security;
(lxi)execute on behalf of itself and the Secured Parties where relevant and without the need for any further referral to, or authority from, the Secured Parties or any other person all
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necessary releases of any such German Collateral secured under the German Security Agreements or any other agreement related to such German Collateral;
(lxii)realise such German Collateral in accordance with the German Security Agreements governed by German law or any other agreement securing such German Collateral; and
(lxiii)make, receive all declarations and statements and undertake all other necessary actions and measures which are necessary or desirable in connection with such German Collateral or the German Security Agreements or any other agreement securing the German Collateral;
(lxiv)take such action on its behalf as may from time to time be authorized under or in accordance with the German Security Agreements; and
(lxv)exercise such rights, remedies, powers and discretions as are specifically delegated to or conferred upon the Secured Parties under the German Security Agreements together with such powers and discretions as are reasonably incidental thereto.
(c)Each of the Secured Parties agrees that, if the courts of Germany do not recognize or give effect to the trust expressed to be created by this Agreement or any German Security Agreement, the relationship of the Secured Parties to the European Collateral Agent in relation to the German Collateral shall be construed as one of principal and agent but, to the extent permissible under the laws of Germany, all the other provisions of this Agreement shall have full force and effect between the parties hereto.
(d)Each Secured Party hereby ratifies and approves, and each future Secured Party by becoming a party to this Agreement ratifies and approves, all acts and declarations previously done by the European Collateral Agent on such person’s behalf (including for the avoidance of doubt the declarations made by the European Collateral Agent as representative without power of attorney (Vertreter ohne Vertretungsmacht) in relation to the creation of any pledge (Pfandrecht) on behalf and for the benefit of each Secured Party as future pledgee or otherwise).
(e)For the purpose of performing its rights and obligations as European Collateral Agent and to make use of any authorization granted under the German Security Agreements, each Secured Party hereby authorizes, and each future Secured Party by becoming a party to this Agreement authorizes, the European Collateral Agent to act as its agent (Stellvertreter), including releases from the restrictions on self-dealing and multiple representation pursuant to Section 10.1(a). The European Collateral Agent has the power to grant sub-power of attorney, including the release from the restrictions of section 181 of the German Civil Code (Bürgerliches Gesetzbuch).
10.73Parallel Debt; Parallel Debt owed to the European Collateral Agent.
(a)Each of the Loan Parties hereby irrevocably and unconditionally undertakes to pay to the European Collateral Agent as creditor in its own right and not as a representative of the other Secured Parties in relation to each amount owing from time to time by that Loan Party to any Secured Party under any Loan Document (each an “Underlying Obligation”) an amount equal to such Underlying Obligation as and when such Underlying Obligation is due for payment under the relevant Loan Document (each such payment undertaking of a Loan Party in relation to a Secured Party, a “Parallel Debt Undertaking”, and all Parallel Debt Undertakings of each Loan Party taken together, its “Parallel Debt”).
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(b)Each of the Loan Parties and the European Collateral Agent acknowledge that the obligations of each Loan Party under any Parallel Debt Undertaking are several and are separate and independent from, and shall not in any way limit or affect, the Underlying Obligation of that Loan Party to the relevant Secured Party under the relevant Loan Document nor shall the amounts for which each Loan Party is liable under any Parallel Debt Undertaking be limited or affected in any way by its Underlying Obligation provided that:
(i)the European Collateral Agent shall not demand payment with regard to a Parallel Debt Undertaking of a Loan Party to the extent that the relevant Underlying Obligation has been irrevocably paid or (in the case of guarantee obligations) discharged;
(ii)a Secured Party shall not demand payment with regard to an Underlying Obligation to the extent that the relevant Parallel Debt Undertaking has been irrevocably paid or (in the case of guarantee obligations) discharged;
(iii)each Parallel Debt Undertaking shall cover, in an anticipatory manner as to its scope, any future changes in the relevant Underlying Obligation, in particular any such changes resulting from any future increase of any loan or note facility, any future extension of the agreed maturity thereof or any future change of the interest rate charged thereunder;
(iv)each Parallel Debt Undertaking shall be due and payable (Y) in the same currency or currencies as the relevant Underlying Obligation and (Z) at the same time when the relevant Underlying Obligation is due and payable; and
(v)each Parallel Debt Undertaking shall remain effective notwithstanding any transfer or assumption of the corresponding Underlying Obligation in whole or in part to or by any third party, irrespective of whether any such transfer or assumption is effected by way of assignment or assignment and transfer by way of assumption of contract or otherwise.
(c)The European Collateral Agent acts in its own name and not as a trustee, and its claims in respect of the Parallel Debt shall not be held on trust. The Collateral granted under the Common Security Documents to the European Collateral Agent to secure the Parallel Debt Undertakings is granted to the European Collateral Agent in its capacity as creditor of each Parallel Debt Undertaking and shall not be held on trust.
(d)All monies received or recovered by the European Collateral Agent pursuant to this Section 10.10, and all amounts received or recovered by the European Collateral Agent from or by the enforcement of any Collateral under the Common Security Documents granted to secure any Parallel Debt Undertaking, shall be applied in accordance with this Agreement.
(e)Without limiting or affecting the European Collateral Agent’s rights against the Loan Parties (whether under this Section 10.10 or under any other provision of the Loan Documents), each Loan Party acknowledges that:
(vi)nothing in this Section 10.10 shall impose any obligation on the European Collateral Agent to advance any sum to any Loan Party or otherwise under any Loan Document, except in its capacity as a lender; and
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(vii)for the purpose of any vote taken under any Loan Document, the European Collateral Agent shall not be regarded as having any participation or commitment other than those which it has in its capacity as a lender.
(f)For purposes of any Security Document governed by Dutch law, any resignation by the European Collateral Agent is not effective with respect to its rights under the Parallel Debts until all rights and obligations under the Parallel Debts have been assigned to and assumed by the successor agent appointed in accordance with this Agreement.
(g)The European Collateral Agent will reasonably cooperate in transferring its rights and obligations under the Parallel Debts to a successor agent in accordance with this Agreement and will reasonably cooperate in transferring all rights and obligations under any Security Document to such successor agent. All parties to this Agreement hereby, in advance, irrevocably grant their cooperation (medewerking) to such transfers of rights and obligations by the European Collateral Agent to a successor agent in accordance this Agreement.
SECTION 11. Miscellaneous.
11.1Rights of Subrogation. Each Term Debt Representative, for and on behalf of itself and the Term Debt Secured Parties, agrees that no payment to any ABL Representative or any ABL Secured Party pursuant to the provisions of this Agreement shall entitle any Term Debt Representative or any Term Debt Secured Party to exercise any rights of subrogation in respect thereof until the ABL Obligations Payment Date. Following the ABL Obligations Payment Date, each ABL Representative agrees to execute such documents, agreements, and instruments as any Term Debt Representative or any Term Debt Secured Party may reasonably request to evidence the transfer by subrogation to any such Person of an interest in the ABL Obligations resulting from payments to such ABL Representative by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by such ABL Representative are paid by the Loan Parties upon request for payment thereof. Each ABL Representative, for and on behalf of itself and the ABL Secured Parties, agrees that no payment to any Term Debt Representative or any Term Debt Secured Party pursuant to the provisions of this Agreement shall entitle any ABL Representative or any ABL Secured Party to exercise any rights of subrogation in respect thereof until the Term Debt Obligations Payment Date. Following the Term Debt Obligations Payment Date, each Term Debt Representative agrees to execute such documents, agreements, and instruments as any ABL Representative or any ABL Secured Party may reasonably request to evidence the transfer by subrogation to any such Person of an interest in the Term Debt Obligations resulting from payments to such Term Debt Representative by such Person, so long as all costs and expenses (including all reasonable legal fees and disbursements) incurred in connection therewith by such Term Debt Representative are paid by the Loan Parties upon request for payment thereof.
11.2Further Assurances. Each Term Debt Representative and each ABL Representative will, at any time and from time to time, promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that the other party may reasonably request, in order to protect any right or interest granted or purported to be granted hereby or to enable any ABL Representative or any Term Debt Representative to exercise and enforce its rights and remedies hereunder; provided, however, that no party shall be required to pay over any payment or distribution, execute any instruments or documents, or take any other action referred to in this Section 11.2, to the extent that such action would contravene any law, order or other legal requirement or any of the terms or provisions of this Agreement, and in the event of a controversy or dispute, such party may interplead any payment or distribution in any court of competent jurisdiction, without further responsibility in respect of such payment or distribution under this Section 11.2.
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11.3Conflicts. In the event of any conflict between the provisions of this Agreement and the provisions of any ABL Document or any Term Debt Document (other than any ABL Document or Term Debt Document which under German law is required to be notarised), the provisions of this Agreement shall govern, except that, solely among holders of Term Debt Obligations (and for the avoidance of doubt not in any way modifying the agreements herein among the holders of ABL Obligations and Term Debt Obligations), in the event of a conflict between the provisions of this Agreement and any intercreditor agreement governing rights and obligations of such holders of Term Debt Obligations, the relative rights of holders of Term Debt Obligations shall be governed by such other intercreditor agreement.
11.4Continuing Nature of Provisions. Subject to Section 5.6, this Agreement shall continue to be effective, and shall not be terminable by any party hereto, until the earlier of (i) the ABL Obligations Payment Date and (ii) the Term Debt Obligations Payment Date; provided that if a Replacement ABL Agreement or Replacement Term Debt Agreement, as applicable, is entered into following such termination, the relevant Secured Parties agree to, upon the request of any Loan Party, restore this Agreement on the terms and conditions set forth herein until the earlier to occur of the next following ABL Obligations Payment Date or Term Debt Obligations Payment Date. This is a continuing agreement and the ABL Secured Parties and the Term Debt Secured Parties may continue, at any time and without notice to the other parties hereto, to extend credit and other financial accommodations, lend monies and provide indebtedness to, or for the benefit of, any Loan Party on the faith hereof. In furtherance of the foregoing:
(h)Upon receipt of a notice from the Loan Parties stating that the Loan Parties (or any of them) have entered into a Replacement ABL Agreement (which notice shall include the identity of the new ABL Representative, if applicable), each Term Debt Representative shall promptly (and in any event within 10 days of the applicable request, unless otherwise agreed by the Controlling ABL Representative or the new ABL Representative, as applicable) (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Loan Parties or the new ABL Representative shall reasonably request in order to provide to the new ABL Representative or the applicable new ABL Secured Parties the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement, (ii) deliver to the new ABL Representative any ABL Priority Collateral held by it, together with any necessary endorsements (or otherwise allow the new ABL Representative to obtain control of such ABL Collateral), and (iii) take such other actions as the Loan Parties or the new ABL Representative may reasonably request to provide the new ABL Representative or the applicable ABL Secured Parties the benefits of this Agreement. The new ABL Representative shall agree in a writing addressed to each Term Debt Representative to be bound by the terms of this Agreement, and
(i)Upon receipt of a notice from the Loan Parties stating that the Loan Parties (or any of them) have entered into a Replacement Term Debt Agreement (which notice shall include the identity of the new Term Debt Representative, if applicable), each ABL Representative shall promptly (and in any event within 10 days of the applicable request, unless otherwise agreed by the Controlling Term Debt Representative or the new Term Debt Representative, as applicable) (i) enter into such documents and agreements (including amendments or supplements to this Agreement) as the Loan Parties or the New Term Debt Representative shall reasonably request in order to provide to the New Term Debt Representative or the applicable new Term Debt Secured Parties the rights contemplated hereby, in each case consistent in all material respects with the terms of this Agreement, (ii) deliver to the New Term Debt Representative any Term Debt Priority Collateral held by it, together with any necessary endorsements (or otherwise allow the New Term Debt Representative to obtain control of such Term Debt Priority Collateral), and (iii) take such other actions as the Loan Parties or the New Term Debt Representative may reasonably request to provide the New Term Debt Representative or the applicable Term Debt Secured Parties the
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benefits of this Agreement. The New Term Debt Representative shall agree in a writing addressed to each ABL Representative to be bound by the terms of this Agreement.
11.5Amendments; Waivers; Refinancings. (a) No amendment or modification of or supplement to any of the provisions of this Agreement shall be effective unless the same shall be in writing and signed by each ABL Representative and each Term Debt Representative, and, in the cases of amendments or modifications of or supplements to this Agreement that affect the rights or duties of any Loan Party, including amendments or modifications of Section 3.5, 3.6, 6, 10.4, 10.5, 10.7 or 10.8 that indirectly or directly affect the rights or duties of any Loan Party, such Loan Party. The Controlling ABL Representative and the Controlling Term Debt Representative shall notify the Loan Parties at the address specified in the signature pages to this Agreement of any amendment or modification of or supplement to any provisions of this Agreement which does not need to be signed by a Loan Party and provide the Loan Parties with a copy of such amendment, modification or supplement.
(b)It is understood that each ABL Representative and each Term Debt Representative, without the consent of any other ABL Secured Party or Term Debt Secured Party, may execute an Additional Debt Joinder Agreement substantially in the form attached as Annex I hereto to have additional indebtedness or other obligations (“Additional Debt”) of any of the Loan Parties become ABL Obligations or Term Debt Obligations, as the case may be, under this Agreement; provided that such Additional Debt is permitted to be incurred by each ABL Agreement and each Term Debt Agreement then extant, and is permitted by such agreements to be subject to the provisions of this Agreement as ABL Obligations or Term Debt Obligations, as applicable.
(c)In executing, or permitting any amendments, modifications or supplements, each ABL Representative and each Term Debt Representative shall each be entitled to receive, and shall be fully protected in relying upon, an officer’s certificate stating that the execution of such amendment, modification or supplement is authorized or permitted by the terms of this Agreement; it being expressly agreed and acknowledged that no further inquiry shall be required of any ABL Representative or any Term Debt Representative as to whether such amendment, modification or supplement is authorized or permitted by the terms of this Agreement. Each ABL Representative and each Term Debt Representative may, but shall not be obligated to, enter into any such amendment, modification or supplement that affects its or their own rights, duties, liabilities or immunities under this Agreement or otherwise.
(d)The ABL Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the ABL Obligations may be refinanced in accordance with the terms of the ABL Documents, in each case without notice to, or the consent of, any Term Debt Representative (except to the extent a consent is otherwise required to permit the refinancing transaction under any ABL Document), all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a refinancing secured by the Common Collateral, the holders of such refinancing debt (or an authorized representative or their behalf) bind themselves to the terms of this Agreement pursuant to a written agreement in a form reasonably acceptable to each Term Debt Representative.
(e)The Term Debt Documents may be amended, supplemented, or otherwise modified in accordance with their terms and the Term Debt Obligations may be refinanced in accordance with the terms of the Term Debt Documents, in each case without notice to, or the consent of, any ABL Representative (except to the extent a consent is otherwise required to permit the refinancing transaction under any Term Debt Document), all without affecting the lien subordination or other provisions of this Agreement; provided, however, that, in the case of a refinancing secured by the Common Collateral, the holders of such
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refinancing debt (or an authorized representative or their behalf) bind themselves to the terms of this Agreement pursuant to a written agreement in a form reasonably acceptable to each ABL Representative.
11.6Information Concerning Financial Condition of the Loan Parties. Each Term Debt Representative and each ABL Representative hereby agree that no party shall have any duty to advise any other party of information known to it regarding the financial condition of the Loan Parties or any such circumstances (except as otherwise provided in the ABL Documents and Term Debt Documents). In the event any Term Debt Representative or any ABL Representative, in its sole discretion, undertakes at any time or from time to time to provide any information to any other party to this Agreement, it shall be under no obligation (a) to provide any such information to such other party or any other party on any subsequent occasion, (b) to undertake any investigation not a part of its regular business routine, or (c) to disclose any other information.
11.7Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK, EXCEPT AS OTHERWISE REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT REMEDIES PROVIDED BY THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK ARE GOVERNED BY THE LAWS OF SUCH JURISDICTION.
11.8Submission to Jurisdiction; JURY TRIAL WAIVER. (a) Each ABL Secured Party, each Term Debt Secured Party and each Loan Party hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the United States District Court for the Southern District of New York sitting in the borough of Manhattan (or if such court lacks subject matter jurisdiction, the Supreme Court of the State of New York sitting in the borough of Manhattan), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Agreement, or for recognition or enforcement of any judgment, and each such party hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding may be heard and determined in such court. Each such party agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in this Agreement shall affect any right that the any ABL Secured Party or Term Debt Secured Party may otherwise have to bring any action or proceeding against any Loan Party in respect of rights under any Security Document governed by laws other than the laws of the State of New York or with respect to any Collateral subject thereto in the courts of any jurisdiction.
(b)Each ABL Secured Party, each Term Debt Secured Party and each Loan Party hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so (i) any objection it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement in any court referred to in paragraph (a) of this Section and (ii) the defense of an inconvenient forum to the maintenance of such action or proceeding.
(c)Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 11.9. Nothing in this Agreement will affect the right of any party to this Agreement to serve process in any other manner permitted by law.
(d)EACH PARTY HERETO HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. EACH PARTY HERETO REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
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TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
11.9Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and may be personally served, sent by facsimile, or sent by overnight express courier service or United States mail and shall be deemed to have been given when delivered in person or by courier service, upon receipt of a telecopy or five days after deposit in the United States mail (certified, with postage prepaid and properly addressed). For the purposes hereof, the addresses of the parties hereto (until notice of a change thereof is delivered as provided in this Section 11.9) shall be as set forth below each party’s name on the signature pages hereof, or, as to each party, at such other address as may be designated by such party in a written notice to all of the other parties.
11.10Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and each of the ABL Secured Parties and Term Debt Secured Parties and their respective successors and assigns, and nothing herein is intended, or shall be construed to give, any other Person any right, remedy or claim under, to or in respect of this Agreement or any Collateral.
11.11Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
11.12Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
11.13Other Remedies. For avoidance of doubt, it is understood that nothing in this Agreement shall prevent any ABL Secured Party or any Term Debt Secured Party from exercising any available remedy to accelerate the maturity of any indebtedness or other obligations owing under the ABL Documents or the Term Debt Documents, as applicable, or to demand payment under any guarantee in respect thereof.
11.14Counterparts; Integration; Effectiveness. This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Agreement, any certificate, request, statement, disclosure or authorization related to this Agreement and/or the transactions contemplated hereby that is an Electronic Signature transmitted by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page shall be effective as delivery of a manually executed counterpart of this. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement shall be deemed to include Electronic Signatures, deliveries or the keeping of records in any electronic form (including deliveries by facsimile, emailed pdf. or any other electronic means that reproduces an image of an actual executed signature page), each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be. This Agreement shall become effective when it shall have been executed by each party hereto.
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11.15Additional Loan Parties. The Company shall cause each Person that becomes a Loan Party after the date hereof to become a party to this Agreement by execution and delivery by such Person of an Additional Loan Party Joinder Agreement in the form of Annex II hereto.
11.16Representatives Entitled to Protections. It is understood and agreed that (a) each Term Debt Representative, Term Administrative Agent and Notes Trustee is entering into this Agreement not in its individual capacity but solely in its capacity as collateral agent, administrative agent and/or trustee under the respective Term Debt Documents, and that each Term Debt Representative, Term Administrative Agent and Notes Trustee shall be afforded in this Agreement all of the same rights, protections, powers, benefits, immunities and indemnities set forth in the Term Debt Documents as if such rights, protections, powers, benefits, immunities and indemnities were specifically set forth in this Agreement and applied solely as among such Term Debt Representative, Term Administrative Agent, Notes Trustee and the Loan Parties as set forth in the Term Debt Documents, with no such rights, protections, powers, benefits, immunities and indemnities being binding on any ABL Representative.
(b) Each ABL Representative and each ABL Administrative Agent is entering into this Agreement not in its individual capacity but solely in its capacity as administrative agent and/or collateral agent under the ABL Documents, and that each ABL Representative and each ABL Administrative Agent shall be afforded in this Agreement all of the same rights, protections, powers, benefits, immunities and indemnities set forth in the ABL Documents as if such rights, protections, powers, benefits, immunities and indemnities were specifically set forth in this Agreement and applied solely as among such ABL Representative, ABL Administrative Agent and the Loan Parties as set forth in the ABL Documents, with no such rights, protections, powers, benefits, immunities and indemnities being binding on any Term Debt Representative.
11.17Foreign Collateral Matters. Each ABL Representative, the ABL Secured Parties, each Term Debt Representative, the Term Debt Secured Parties, the Company and each other Loan Party hereby acknowledge and agree that, subject to any requirements of applicable law:
(a)(i) Loan Parties that are not organized under the laws of the United States or a political subdivision thereof (the “Foreign Loan Parties”) have granted security interests in the Collateral of such Foreign Loan Parties and (ii) certain Loan Parties organized under the laws of the United States or a political subdivision thereof have granted security interests in certain foreign pledged or located collateral (such Collateral and foreign pledged or located collateral, collectively, the “Foreign Collateral”), in the case of each of clause (i) and clause (ii) above, to secure certain ABL Obligations and Term Debt Obligations of such Loan Parties pursuant to the terms of the ABL Security Documents and the Term Debt Security Documents.
(b)It is the intention of the parties hereto that (i) the Foreign Collateral shall be subject to terms of this Agreement, (ii) any Proceeds with respect to the Foreign Collateral constituting ABL Priority Collateral (“Foreign ABL Priority Collateral”) and any Proceeds with respect to Foreign Collateral constituting Term Debt Priority Collateral (“Foreign Term Debt Priority Collateral”) in each case shall be applied in accordance with Section 2.1 of this Agreement to the same extent as all other ABL Priority Collateral and Term Debt Priority Collateral hereunder are so applied, (iii) notwithstanding the date, time, method, manner or order of grant, attachment or perfection of any Liens securing the ABL Obligations granted on the Foreign Collateral or of any Liens securing the Term Debt Obligations granted on the Foreign Collateral, and notwithstanding any provision of the security code of any jurisdiction, or any other applicable law or the ABL Documents or Term Debt Documents, or that certain Security Documents are Common Security Documents with Common Liens, or any defect or deficiencies in, or failure to perfect any such Liens or any other circumstance
65
whatsoever, the ranking of the Foreign ABL Priority Collateral and Foreign Term Debt Priority Collateral shall be consistent with the ranking set forth in Section 2.1 of this Agreement with respect to all other ABL Priority Collateral and Term Debt Priority Collateral hereunder, as applicable, (iv) notwithstanding that Liens on the Foreign Term Debt Priority Collateral and Liens on the Foreign ABL Priority Collateral may (A) have legally the same ranking due to mandatory legal in-rem provisions governing such Foreign Term Debt Priority Collateral and Foreign ABL Priority Collateral, respectively, or (B) have been perfected in an order contrary to the contemplated ranking as set out in this Agreement, the contractual ranking of the Liens on the Foreign Term Debt Priority Collateral and Liens on the Foreign ABL Priority Collateral shall be consistent with the ranking set forth in Section 2.1 and other provisions of this Agreement, and (v) all the other terms and provisions of this Agreement with respect to Collateral be applicable to such Foreign Collateral.
(c)) Each Spanish Loan Party and any other Spanish third-party security provider expressly represents that all obligations assumed by them under this Agreement constitute a provision for the benefit of third parties (estipulación a favor de terceros) in favour of the Secured Parties, which hereby expressly accept it, within the meaning of Article 1,257 of the Spanish Civil Code.
11.18Attorney representation. Each Party acknowledges and accepts that, if a Party is represented by an attorney in connection with the signing and/or execution of this Agreement or any other agreement, deed or document referred to in this Agreement or made pursuant to this Agreement, and the power of attorney is governed by Dutch law, that the existence and extent of the attorney’s authority and the effects of the attorney’s exercise or purported exercise of its authority shall be governed by Dutch law.
11.19Successors. For the avoidance of doubt, any successor administrative agent, collateral agent or trustee appointed under any series of Secured Obligations may replace the applicable Representative or Agent hereunder with respect to such series of Secured Obligations by executing a counterpart signature page hereto and delivering such signature page to each party hereto.
[SIGNATURE PAGES TO FOLLOW]
66
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
JPMORGAN CHASE BANK, N.A., as an ABL Representative for and on behalf of the applicable ABL Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
GLAS AMERICAS, LLC, as Collateral Agent and as an ABL Representative, in each case for and on behalf of the applicable ABL Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
JPMORGAN CHASE BANK, N.A., as ABL Administrative Agent
By: Name:
Title:
67
Address for Notices:
Attention:
Telecopy No.:
GLAS AMERICAS, LLC, as European Collateral Agent By:
Name:
Title:
Address for Notices:
Attention: Telecopy No.:
GLAS AMERICAS LLC, as Super Priority Term Representative, Controlling Term Debt Representative and Term Debt Representative on behalf of the applicable Term Debt Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
GLAS USA LLC, as Super Priority Term Administrative Agent
By: Name:
Title:
Address for Notices:
Attention: Telecopy No.:
GLAS AMERICAS LLC, as Extended Term Representative and a Term Debt Representative on behalf of the applicable Term Debt Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
JPMORGAN CHASE BANK, N.A., as Extended Term Administrative Agent
By: Name:
Title:
Address for Notices:
Attention: Telecopy No.:
GLAS AMERICAS LLC, as New Term Debt Representative and a Term Debt Representative on behalf of the applicable Term Debt Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as New Notes Trustee
By: Name:
Title:
Address for Notices:
Attention: Telecopy No.:
GLAS AMERICAS LLC, as Existing USD Notes Representative and a Term Debt Representative on behalf of the applicable Term Debt Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Existing USD Notes Trustee
By: Name:
Title:
Address for Notices:
Attention: Telecopy No.:
GLAS AMERICAS LLC, as Existing EUR Notes Representative and a Term Debt Representative on behalf of the applicable Term Debt Secured Parties
By: Name:
Title:
Address for Notices:
Attention:
Telecopy No.:
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Existing EUR Notes Trustee
By: Name:
Title:
Address for Notices:
Attention: Telecopy No.:
[LIST LOAN PARTIES]
By: Name:
Title:
Address for Notices:
Attention: Telecopy No.:
ANNEX I
ADDITIONAL DEBT JOINDER AGREEMENT
THIS ADDITIONAL DEBT JOINDER AGREEMENT (this “Agreement”), dated as of
, 202_, is executed by , a , as collateral [agent][trustee] (in such capacity, the “New Representative”) in connection with that certain ABL Intercreditor Agreement (the “ABL Intercreditor Agreement”), dated as of December 29, 2022 among JPMORGAN CHASE BANK, N.A. and GLAS AMERICAS LLC, each as an ABL Representative, GLAS AMERICAS LLC, as Super Priority Term Representative, GLAS AMERICAS LLC, as Extended Term Representative, GLAS AMERICAS LLC, as New Term Debt Representative, GLAS AMERICAS LLC, as Existing USD Notes Representative, GLAS AMERICAS LLC, as Existing EUR Notes Representative, each additional representative in respect of Additional Debt from time to time party thereto and each of the Loan Parties party thereto. All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the ABL Intercreditor Agreement.
This Agreement is being delivered in connection with the execution and delivery of that certain [●] dated as of the date hereof (as amended, supplemented or otherwise modified from time to time, the “Additional Debt Agreement”) among [●], and the New Representative, pursuant to which [described new debt being issued] (the “Additional Debt”), which Additional Debt shall constitute [ABL][Term Debt] Obligations and which holders of the Additional Debt (the “Debtholders”) shall constitute [ABL][Term Debt] Creditors, in each case, under the ABL Intercreditor Agreement.
1.Joinder. The undersigned, [●], in its capacity as the New Representative hereby joins the ABL Intercreditor Agreement as additional [ABL][Term Debt] Representative acting for and on behalf of the Debtholders as [ABL][Term Debt] Creditors under, and as defined in, the ABL Intercreditor Agreement for all purposes thereof on the terms set forth therein, and agrees to be bound by the terms, conditions and provisions of the ABL Intercreditor Agreement as fully as if the undersigned had executed and delivered the ABL Intercreditor Agreement as of the date thereof.
2.Lien Sharing and Priority Confirmation. The New Representative, on behalf of itself and each Debtholder (together with the New Representative, the “New Pari Passu Creditors”), hereby agrees, as a condition to having the obligations in respect of the Additional Debt being treated as [ABL][Term Debt] Obligations under the ABL Intercreditor Agreement that: (a), all [ABL][Term Debt] Obligations will be and are secured equally and ratably by all Liens on the Collateral and that all Liens granted pursuant to the [ABL][Term Debt] Security Documents will be enforceable by the Controlling [ABL][Term Debt] Collateral Agent for the benefit of all [ABL][Term Debt] Creditors equally and ratably; (b) the New Representative and each other New Pari Passu Creditor confirms and agrees to the provisions of Section
2.2 as if applicable to the other [ABL][Term Debt] Obligations as if they were the Senior Lien referenced therein; (c) the New Representative and each other New Pari Passu Creditor confirms and agrees to be bound by the terms, conditions and provisions of the foregoing and the ABL Intercreditor Agreement, including, without limitation, the provisions relating to the ranking of Liens and the order of application of proceeds from the enforcement of Liens; and (d) the New Representative shall perform its obligations under the ABL Intercreditor Agreement.
3.Authority as Agent. The New Representative represents, warrants and acknowledges that, pursuant to the authorizations set forth in the Additional Debt Agreement, it has the authority to bind each of the New Pari Passu Creditors to the ABL Intercreditor Agreement pursuant to the terms of this Agreement.
4.Counterparts. This Joinder may be executed in two or more counterparts, each of which shall constitute an original but all of which when taken together shall constitute one contract.
5.Governing Law. THIS JOINDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties caused this Agreement to be duly executed and delivered as of the day and year first above written.
Notice Address: New Representative
[●]
By: Name:
Title:
[LOAN PARTIES]
By: Name:
Title:
ANNEX II
ADDITIONAL LOAN PARTY JOINDER AGREEMENT
THIS ADDITIONAL LOAN PARTY JOINDER AGREEMENT (this “Agreement”),
dated as of , 202_, is executed by , a
(the “New Subsidiary”) in favor of JPMORGAN CHASE BANK, N.A. and GLAS AMERICAS LLC, each as an ABL Representative, GLAS AMERICAS LLC, as Super Priority Term Representative, GLAS AMERICAS LLC, as Extended Term Representative, GLAS AMERICAS LLC, as New Term Debt Representative, GLAS AMERICAS LLC, as Existing USD Notes Representative, GLAS AMERICAS LLC, as Existing EUR Notes Representative and each additional representative in respect of Additional Debt from time to time party thereto (collectively, the “Representatives”), each in their respective capacities as such under that certain ABL Intercreditor Agreement (the “ABL Intercreditor Agreement”), dated as of , 2022 among the Representatives and each of the other Loan Parties party thereto. All capitalized terms used herein and not otherwise defined shall have the meanings set forth in the ABL Intercreditor Agreement.
The New Subsidiary, for the benefit of the Representatives, hereby agrees as follows:
1.The New Subsidiary hereby acknowledges the ABL Intercreditor Agreement and acknowledges, agrees and confirms that, by its execution of this Agreement, the New Subsidiary will be deemed to be a Loan Party under the ABL Intercreditor Agreement and shall have all of the obligations of a Loan Party thereunder as if it had executed the ABL Intercreditor Agreement. The New Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by, all of the terms, provisions and conditions contained in the ABL Intercreditor Agreement.
2.The address of the New Subsidiary for purposes of Section 11.9 of the ABL Intercreditor Agreement is as follows:
3.THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE NEW SUBSIDIARY HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Subsidiary has caused this Agreement to be duly executed by its authorized officer, as of the day and year first above written.
[NEW SUBSIDIARY]
By: Name: Title:
EXHIBIT N
[FORM OF] JOINDER AGREEMENT
This JOINDER AGREEMENT (this “Agreement”), dated as of [ ], 20[ ], is delivered pursuant to the terms of the Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorporated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nixdorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Global Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company organized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self-Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Borrower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Belgian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada, Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMORGAN CHASE BANK,
N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent”) and is entered into by and among [NAME OF FINANCIAL INSTITUTION] (the “Joining Lender”), the Administrative Agent and the Borrowers.
WHEREAS, the Joining Lender has agreed to provide Revolving Commitments under the ABL Credit Agreement in the amount indicated on the signature pages hereof and wishes to become a party to the ABL Credit Agreement and a party thereunder.
NOW THEREFORE, in consideration of the above premises, the parties hereto hereby agree as follows:
1.The Joining Lender hereby (a) becomes a party to the ABL Credit Agreement as a Lender thereunder with the same force and effect as if originally named as a Lender therein and
(b) agrees to be bound by all the terms and conditions of the ABL Credit Agreement and the other Credit Documents applicable to the Lenders. The Revolving Commitments of the Joining Lender are as set forth on the signature pages hereto.
2.The Joining Lender hereby acknowledges receipt of the ABL Credit Agreement and the other Credit Documents.
3.The Joining Lender (a) agrees that it will, independently and without reliance upon any Agent or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the ABL Credit Agreement; (b) appoints and authorizes the Administrative Agent to take such action as agents on its behalf and to exercise such powers under the ABL Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; (c) agrees that it will perform in accordance with their terms all of the obligations which by the terms of the ABL Credit Agreement are required to be performed by it as a Lender; (d) confirms it has received such documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Agreement; [(e) represents and warrants that [it is a French Tax Qualifying Lender and an Italian Tax Qualifying Lender]26[it is a Swedish Tax Qualifying Lender [it is a Spanish Tax Qualifying Lender] [it is a Spanish Tax Qualifying Lender solely by virtue of clauses (b) or (c) of the definition of Spanish Tax Qualifying Lender] and [[a UK Tax Qualifying Lender][a UK Tax Qualifying Lender solely by virtue of clause (a)(ii) of the definition of UK Tax Qualifying Lender]27,]28[[and that] it is [a Swiss Qualifying Bank][a Swiss Non-Qualifying Bank and accounts as one single creditor for the purposes of the Swiss Non-Bank Rules;]]29 [([(e)][(f)] confirms that it holds a passport under the HMRC DT Treaty Passport scheme (reference number [●]) and is tax resident in [●] (and requests that the Parent Borrower notifies each UK Credit Party that it wishes that scheme to apply to the ABL Credit Agreement; and [(e)][(f)][(g)] specifies as its domestic lending office (and address for notices), Canadian lending office (and address for notices) and European lending office (and address for notices), the offices set forth beneath its name on the signature page hereof.
4.Following the execution of this Agreement by the parties hereto, it will be delivered to the Administrative Agent for acceptance and recording by the Administrative Agent.
5.Upon such acceptance and recording by the Administrative Agent, the Joining Lender shall be a party to the ABL Credit Agreement and, to the extent provided in this Agreement, have the rights and obligations under the ABL Credit Agreement of a Lender.
6.This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are attached to the same document. Delivery of an executed signature page of this Agreement by facsimile transmission, electronic mail or by posting on an electronic platform chosen by the Administrative Agent shall be as effective as delivery of a manually executed counterpart hereof. A set of the copies of this Agreement signed by all parties shall be lodged with the Borrower and the Administrative Agent.
26 To be included for Tranche B Lenders.
27 Tranche C Lenders should elect whichever of the UK Tax Qualifying Lender Statements which applies to them. A UK Tax Confirmation may be required.
28 To be included for Tranche C Lenders.
29 Tranche C Lenders must elect one of these two options.
7.This Agreement and the rights and obligations of the parties hereunder shall be governed by, and shall be construed and enforced in accordance with, the law of the State of New York without regard to conflict of laws principles thereof.
8.This Agreement, together with all of the other Credit Documents and all certificates and documents delivered hereunder or thereunder, embodies the entire agreement of the parties with the Joining Lender and supersedes all prior agreements and understandings relating to the subject matter hereof.
9.EACH OF THE PARTIES HERETO HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING HEREUNDER OR UNDER ANY OF THE OTHER CREDIT DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO SECTION 10.16 OF THE CREDIT AGREEMENT AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS HERETO OR ANY OF THE OTHER CREDIT DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS MADE UNDER THE CREDIT AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties to this Joinder Agreement have caused it to be executed by their duly Authorized Officers as of the day and year first written above.
[NAME OF FINANCIAL INSTITUTION],
as Joining Lender
By: Name:
Title:
Tranche A Revolving Commitment:
$
applicable Lending Office (and address for notices):
[address] [address] Attention:
Tranche B Revolving Commitment:
$
applicable Lending Office (and address for notices):
[address] [address] Attention:
Tranche C Revolving Commitment:
$
applicable Lending Office (and address for notices):
[address] [address] Attention:
Accepted and Agreed
this day of , 20
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent and Collateral Agent
By: Name:
Title:
GLAS AMERICAS LLC,
as European Collateral Agent
By: Name:
Title:
DIEBOLD NIXDORF, INCORPORATED,
as Parent Borrower
By: Name:
Title:
EXHIBIT O
[FORM OF] SPANISH JOINDER AGREEMENT
This Spanish Joinder Agreement (this “Agreement”) dated as of [ ], 20[ ], is made by [ ] (the “New Spanish Credit Party”), to and in favor of the Agents pursuant to the Revolving Credit and Guaranty Agreement referred to below.
Reference hereby is made to that certain Revolving Credit and Guaranty Agreement, dated as of December 29, 2022 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “ABL Credit Agreement”; the capitalized terms defined therein and not otherwise defined herein being used herein as therein defined), by and among Diebold Nixdorf, Incorpo- rated, an Ohio corporation (the “Parent Borrower”), the certain Subsidiaries of Parent Borrower identi- fied on the signature pages thereto as the US Subsidiary Guarantors (the “US Subsidiary Guarantors”), the certain Subsidiaries of Parent Borrower identified on the signature pages thereto as the European Guarantors (the “European Guarantors”), Diebold Nixdorf Deutschland GmbH (“DND”), Diebold Nix- dorf Systems GmbH (“DNS”), Wincor Nixdorf International GmbH (“WNI”) and Diebold Nixdorf Glob- al Logistics GmbH (“DNGL”), each a company organized under the laws of Germany (DND, DNS, WNI and DNGL, collectively, the “German Borrowers” and each, a “German Borrower”), Diebold Nixdorf AB, a company organized under the laws of Sweden with company registration number 556567-7787 (the “Swedish Borrower”), Diebold Nixdorf S.A.S., a company organized under the laws of France (the “French Borrower”), Diebold Nixdorf B.V., a company organized under the laws of the Netherlands (the “Dutch Borrower”), Diebold Nixdorf (UK) Limited, a company incorporated under the laws of England and Wales with company number 03841833 (the “UK Borrower”), Diebold Nixdorf s.r.l., a company organized under the laws of Italy (the “Italian Borrower”), Diebold Nixdorf sp. z o.o., a company orga- nized under the laws of Poland (the “Polish Borrower”), Diebold Nixdorf B.V., a company organized under the laws of Belgium, registered with the Crossroads Bank for Enterprises under number 0470.273.024 (the “Belgian Borrower”), Diebold Self-Service Solutions S.a r.l. (the “Swiss Borrower” and, together with the German Borrowers, the Swedish Borrower, the French Borrower, the Dutch Bor- rower, the UK Borrower, the Italian Borrower, the Polish Borrower, the Spanish Borrower and the Bel- gian Borrower, collectively, the “European Borrowers” and, each, a “European Borrower”), Diebold Nixdorf Canada Limited, a company organized under the laws of the Province of Ontario (the “Canadian Borrower”), the Lenders party thereto from time to time, JPMorgan Chase Bank, N.A. (“JPMorgan”), as Administrative Agent (together with its permitted successors in such capacity, the “Administrative Agent”), JPMorgan, as Collateral Agent (together with its permitted successors in such capacity, the “Collateral Agent”) and GLAS AMERICAS LLC, as European Collateral Agent (together with its permitted successors in such capacity, the “European Collateral Agent” and jointly with the Adminis- trative Agent and the Collateral Agent, the “Agents”). A copy of which is attached hereto as Schedule I.
The New Spanish Credit Party hereby acknowledges, agrees and elects to be a “Credit Party” for all purposes of and under the ABL Credit Agreement and each of the other Credit Documents executed and delivered in connection therewith, effective from the date hereof. All references in the ABL Credit Agreement and the other Credit Documents to the terms “Credit Party” or “Credit Parties” shall be deemed to include the New Spanish Credit Party. By its execution of this Agreement, the New Spanish Credit Party hereby confirms that the representations and warranties contained in Section 4 of the ABL Credit Agreement are true and correct in all respects (subject to any materiality qualifier contained there- in) as to the New Spanish Credit Party as of the effective date of this Agreement and as of each other date such representations and warranties are made pursuant to the Credit Documents. Without limiting the generality of the foregoing, the New Spanish Credit Party hereby agrees to perform all the obligations of a Credit Party under, and to be bound in all respects by the terms of, the ABL Credit Agreement to the same extent and with the same force and effect as if it were a signatory party thereto as a Credit Party.
(a)Spanish Public Documents
This Agreement (as well as any amendments hereto or thereto) shall be formalized as a Spanish Public Document, so that it may have the status of a notarial document for all purposes contemplated in Article 517, sections 4º or 5º (as applicable) of the Spanish Civil Procedural Law. Any costs and expenses relating to such formalization shall be paid and satisfied by the New Spanish Credit Party.
The New Spanish Credit Party also undertakes to grant any public or private document reasona- bly required by the Agents for the purposes of or in relation to such Spanish Public Document.
The costs of issuance of first copies (with and without enforcement title) of such Spanish Public Document shall be borne by the New Spanish Credit Party, and the cost regarding the issuance of addi- tional copies will be borne by the Party requesting such additional copies.
Each Party hereby expressly authorizes the Secured Parties to request and obtain from the Span- ish notary public before whom this Agreement and/or any Credit Document has been formalized, any fur- ther copy of this Agreement or any other notarized Credit Document. In any case, the cost of issuance of the first copy for the Administrative Agent of this Agreement and/or any other notarized Credit Document requested by the Secured Parties shall be borne by the New Spanish Credit Party.
(b)Enforcement proceedings
(i) For the purpose of art. 571 et seq. of the Spanish Civil Procedural Law, the Parties agree that: (A) the amount due and payable under the Credit Documents that may be claimed in any exec- utive proceedings will be contained in a certificate setting out the relevant calculations and determinations provided by the relevant Agent and will be based on the accounts maintained by such Agent in connection with the Credit Documents; (B) the Agent and/or each Lender may (at the cost of the relevant Spanish Credit Party) have the certificate notarized evidencing that the calculations and determinations have been effected; and (C) the Agent and/or the Lenders may claim the total amount of the principal and interest due if there is a default in the repayment of any instalment of principal or interest. (ii) The Agent and/or the Lenders may start, where applicable, executive proceedings (procedimiento ejecutivo) in Spain, in connection with or relating to the ABL Credit Agreement any of the Credit Documents or the this Agree- ment, by providing to the relevant court the documents specified in article 573 of the Spanish Civil Pro- cedural Act, namely: (A) an original notarial copy of the ABL Credit Agreement or this Agreement; (B) a notarial document (acta notarial) incorporating the certificate of the Agent and/or the Lenders referred to in Section 10.29(b)(i)(A) for the purposes of Article 572 of the Spanish Civil Procedural Act; and (B) ev- idence that the relevant obligor has been notified of the amount which is due and payable resulting from the certificate. (iii) The New Spanish Credit Party hereby expressly authorizes the Agents (and each Lender, as appropriate) to request and obtain certificates and documents issued by the notary who has formalised the ABL Credit Agreement or this Agreement (or any accession deed or amendment thereto) in order to evidence its compliance with the entries of his registry-book and the relevant entry date for the purpose of numbers 4º or 5º (as applicable) of Article 517 of the Spanish Civil Procedural Law. The cost of such certificate and documents will be for the account of the New Spanish Credit Party. (iv) For the purposes of article 540.2 of the Spanish Civil Procedural Law, the New Spanish Credit Party acknowl- edges and accepts that, provided that the relevant assignment, transfer or change of Lenders has been made in accordance with the terms of the ABL Credit Agreement, any assignment, transfer or change of Lenders shall be duly and sufficiently evidenced to any Spanish court by means of a certificate issued by the any of the Agents confirming who the Lenders are in each moment, and therefore, those who are certi- fied as Lenders by such Agent shall be able to initiate enforcement in Spain through procedimiento ejecu- tivo without further evidence being required. (v) Notwithstanding the provisions of Section 10.14 (Gov-
erning Law) of the ABL Credit Agreement, none of the Lenders will be prevented from initiating en- forcement proceedings before the Spanish courts against the New Spanish Credit Party.
Except as specifically modified hereby, all of the terms and conditions of the ABL Credit Agree- ment and other Credit Documents shall remain unchanged and in full force and effect.
No reference to this Agreement need be made in the ABL Credit Agreement or in any other Cred- it Document or other document or instrument making reference to the same, any reference to Credit Doc- uments in any of such to be deemed a reference to the ABL Credit Agreement, or other Credit Docu- ments, as applicable, as modified hereby.
Each of the undersigned acknowledges that this Agreement shall be effective upon execution by the New Spanish Credit Party and the Agents. This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without regard to conflicts of law principles.
This Agreement may be executed in any number of counterparts and by different parties in sepa- rate counterparts, each of which when so executed shall be deemed to be an original and all of which tak- en together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart. Delivery of an executed signature page of this Agreement by facsimile transmission or electronic transmission shall be as effective as delivery of a man- ually executed counterpart hereof.
[Signature pages follow]
[new Spanish credit party]
By: Name:
Title:
Acknowledged and Agreed as of the date first above written:
GLAS AMERICAS LLC
as European Collateral Agent
By: Name:
Title:
Acknowledged and Agreed as of the date first above written:
JPMORGAN CHASE BANK, N.A
as Administrative Agent and Collateral Agent
By: Name:
Title:
SCHEDULE 1 – ABL CREDIT AGREEMENT
Annex I
ABL AGREED SECURITY PRINCIPLES
For the purposes of these Agreed Security Principles, Foreign Credit Parties means the European Credit Parties.
1.Agreed Security Principles
(l)Subject to paragraph (b) below, the guarantees and security required to be provided under the Credit Documents (i) by any Credit Party incorporated in a Foreign Guarantor Jurisdiction (such term as defined below) (a “Foreign Credit Party”) or (ii) over the Equity Interests of a Foreign Credit Party owned by any Credit Party will, in each case, be given in accordance with the security principles set out in this Annex I (these “Agreed Security Principles”). This Annex I identifies the Agreed Security Principles and determines the extent and terms of the guarantees and security proposed to be provided (x) by the Foreign Credit Parties and (y) in respect of the Equity Interests of Foreign Credit Parties owned by any Credit Party in relation to the Loans (or any refinancing thereof) and the other Obligations.
(m)To the extent that an interpretation of these Agreed Security Principles or a determination is required to be made hereunder in connection with the delivery of guarantees and security or the terms of the guarantees and security, such determination will be made by the Company and the Required Lenders and, with respect to any provisions relating to protections or obligations of the Administrative Agent or GLAS Americas LLC as the European Collateral Agent (in such capacity, the “Applicable Collateral Agent”), respectively. For the avoidance of doubt, neither the Collateral Agent nor the Administrative Agent shall have any obligation to ensure that the security and guarantees provided are consistent with these Agreed Security Principles.
2.Guarantees
Subject to the guarantee limitations set out in the Credit Documents, and with respect to the Foreign Credit Parties, customary limitations in the relevant jurisdiction reasonably agreed by the Company and the Required Lenders, each guarantee by a Foreign Credit Party will be an upstream, cross-stream and downstream guarantee for the Obligations in accordance with, and subject to, the terms of these Agreed Security Principles in each relevant jurisdiction (references to "security" to be read for this purpose as including guarantees).
3.Secured Liabilities
Security documents will secure, with respect to each applicable Credit Party, the borrowing and guarantee obligations of that Credit Party under the Credit Documents in accordance with, and subject to, the terms of the Agreed Security Principles in each relevant jurisdiction.
4.Overriding Principle
(n)The guarantees and security to be provided in respect of the Credit Agreement by Foreign Subsidiaries in accordance with these Agreed Security Principles are only to be given by Foreign Subsidiaries which are incorporated in Germany, Belgium, France, England & Wales, Sweden, Spain, Poland, Italy and the Netherlands (each a “Foreign Guarantor Jurisdiction”) and no security or guarantees shall be required to be given by Foreign Subsidiaries not incorporated in Foreign Guarantor Jurisdictions.
(o)The parties agree that the overriding intention, subject to paragraph (a) above, is for security only to be granted by, and shall be limited to, a Foreign Credit Party which is incorporated in a Foreign Guarantor Jurisdiction in respect only over (and in any case only to the extent commercially and legally feasible in such Foreign Guarantor Jurisdiction):
(A)its Deposit Accounts (with control to be in the manner described in the Credit Agreement) other than Common Excluded Accounts (as defined in the Intercreditor Agreement);
(B)its tangible moveable property (including inventory);
(C)intra-group receivables owed to such Foreign Credit Party;
(D)intellectual property owned by such Foreign Credit Party;
(E)insurance policies (including insurance receivables);
(F)account and trade receivables owed to such Foreign Credit Party;
(G)the shares and/or quotas owned in such Foreign Credit Party by its direct holding company provided that such direct holding company is also a Credit Party and shares owned by such Foreign Credit Party in its direct subsidiaries;
(H)fee owned real property having a fair market value in excess of
$10,000,000;
(I)in the case of an English Credit Party, its goodwill and uncalled capital;
(J)all of its assets by way of a qualifying floating charge (or equivalent) from an English Credit Party and any other Foreign Credit Party incorporated in a Foreign Guarantor Jurisdiction with a practical equivalent of an English law floating charge; and
(K)tort claims, investments and contractual claims against third parties;
(L)in the case of a Swedish Credit Party, corporate mortgage (Sw. företagshypotek) over corporate mortgage registrations (Sw. företagsinteckingar) and in the case of a Polish Credit Party, a business pledge,
(the “Overriding Principle”) and that no other security shall be required to be given by any other Foreign Credit Party or any other person or in relation to any other asset.
(p)Without prejudice to paragraph (b) above, no guarantees shall be required to be granted by and no security shall be required to be granted by or in (i) any Subsidiary that is an Excluded Subsidiary or (ii) any asset that is an Excluded Asset.
(q)In addition, for the avoidance of doubt, no Foreign Loan Party incorporated in France shall be under any obligation pursuant to these Agreed Security Principles to grant security interest on any asset if it is reasonably determined by such Foreign Loan Party incorporated in France that the grant of such security interest requires a prior opinion of its works council (comité social et économique) to be delivered (or deemed
delivered), where such opinion has not been delivered (or is not deemed delivered). If it is reasonably determined by the Company and the Required Lenders that the applicable time and cost of obtaining such opinion would be disproportionate to the benefit accruing to the Lenders of obtaining such security interest, the Foreign Loan Party incorporated in France shall not launch the works council’s consultation process and shall not be under any obligation to grant the security interest on such relevant asset.
5.Governing Law and Jurisdiction of Security
(r)Except as described below, all security will be governed by the law of, the jurisdiction of incorporation of the applicable grantor of the security.
(s)Share security over any subsidiary will be governed by the law of the place of incorporation of that subsidiary or of the applicable grantor, provided that such place of incorporation is a Specified Foreign Jurisdiction, the United States or Canada.
(t)Any security in respect of inventory in the Borrowing Base and any Collection Accounts and, if reasonably required by the Collateral Agent, other Deposit Accounts, shall be governed by the law of the jurisdiction in which they are located, provided that the location is a Specified Foreign Jurisdiction, the United States or Canada.
(u)Security in relation to any receivables will be governed by the laws of the governing law of such receivables or the place of incorporation of the applicable grantor, provided that such law is the law at a Specified Foreign Jurisdiction.
(v)No action in relation to security (including any perfection step, further assurance step, filing or registration) will be required in jurisdictions where the applicable grantor of the security is not incorporated other than in the United States, Canada or another Specified Foreign Jurisdiction.
6.Terms of security documents
The following principles will be reflected in the terms of any security taken in connection with the Loans (or any refinancing thereof):
(w)security will be ranking in accordance with the lien priorities in any applicable Intercreditor Agreement;
(x)security will, to the extent possible under local law, not be enforceable until the occurrence of an Event of Default (an “Applicable Event”) which is continuing (and, with respect to security governed by the laws of the Netherlands, constitutes a default in the performance of the secured obligations);
(y)with respect to security interests granted by an Italian Credit Party (or governed by Italian law) or a Spanish Credit Party, Applicable Event will be a payment default or the acceleration of the relevant secured obligations;
(z)unless as otherwise required to perfect the security or required by law (e.g. with respect to the power of attorney for the purposes of the notarization of the equity pledge security of any German Loan Party or the Spanish law irrevocable power of attorney to be granted in relation to the Spanish law Security), the beneficiaries of the security or any agent will only be able to exercise a power of attorney granted by a Credit Party and to exercise any withdrawal rights in respect of a secured asset following (i) the occurrence of an Applicable Event or Global Liquidity Event Period, in each case
which is continuing or (ii) if the relevant Credit Party has failed to comply with its obligations under the relevant security documents within five Business Days of request.
(aa)the security documents should only operate to create security rather than to impose new commercial obligations or repeat clauses in other Credit Documents; accordingly:
(i)they should not contain identical or additional representations, undertakings or indemnities (including in respect of insurance, information, maintenance or protection of assets or the payment of fees, costs and expenses) unless required for the creation or perfection of security, to maintain effective security or customary in the relevant jurisdiction;
(ii)notwithstanding anything to the contrary in any security document, the terms of a security document shall not operate or be construed so as to prohibit or restrict any transaction, matter or other step permitted by the Credit Documents or where the applicable level of creditor consent required by the relevant Credit Document (“Required Creditor Consent”) has been obtained and the Applicable Collateral Agent shall (pursuant to its authority under Section 10.5(c) of the Credit Agreement), upon the reasonable request of a Foreign Credit Party that grants Collateral (a “Chargor”), promptly following receipt of an officer’s certificate to the extent requested by the Applicable Collateral Agent,enter into such documentation and/or take such other action as is authorized by Section 10.5(c) of the Credit Agreement in order to facilitate the transactions, matters and other steps referenced therein, including by way of executing any confirmation, consent to dealing, release or other similar or equivalent document, provided that any costs and expenses incurred by the Applicable Collateral Agent entering into such documentation and/or taking such other action at the request of such Chargor pursuant to this paragraph shall be for the account of such Chargor, in accordance with the costs and expenses provisions set out in the Credit Agreement and such provision shall be included in each security document; and
(iii)the security documents should not operate so as to require additional consents or authorisations from the Lenders unless these are required for the creation or perfection of security or to maintain effective security;
(ab)security will, where possible, automatically create security over future assets of the same type as those already secured; where local law requires supplemental pledges or notices to be delivered in respect of future acquired assets in order for effective security to be created over that class of asset, such supplemental pledges or notices will (unless otherwise customary in the relevant jurisdiction) be provided periodically at intervals
(i) in the case of any asset included in the Borrowing Base or any Collection Account,
(A) 5 Business Days prior to the delivery of a Borrowing Base Certificate to the extent the Borrowing Base Certificate is required to be delivered monthly; (B) 2 Business Days prior to the delivery of a Borrowing Base Certificate to the extent the Borrowing Base Certificate is required to be delivered weekly; and (ii) in the case of any asset that is neither included in the Borrowing Base nor a Collection Account, no more frequent than quarterly (unless required more frequently under local law or local market practice, including if required due to the shorter maturity of the relevant future acquired asset) (or with such higher frequency specified by the Applicable Collateral Agent after the occurrence of an Applicable Event);
(ac)the security documents will provide that, upon the occurrence of the date on which all Obligations) (in each case other than in respect of contingent indemnification and expense reimbursement claims not then due) of all secured parties secured by that
security document have been paid in full, the Applicable Collateral Agent shall, at the request of and the cost and expense of the Company, and solely with respect to the Obligations, release, reassign or retransfer the respective asset or class of assets to the relevant Credit Party, and shall take all actions and execute any and all documents as may be necessary or convenient to evidence the cancellation, release and termination of all guarantees and security pursuant to Section 10.5(c) of the Credit Agreement without having to make or being deemed to make any representation or warranty, whether express or implied, with respect to the relevant payor's financial soundness and/or any asset or class of assets so released and subject to the rights of any person having prior rights over any such assets; any such release, reassignment, retransfer, cancellation or termination is made in whole or in part on the basis of any payment, security or other disposition which is avoided or must be restored in bankruptcy, insolvency, liquidation, administration or otherwise, without limitation, then such security or guarantee will continue or be reinstated as if the release, reassignment, retransfer, cancellation or termination had not occurred;
(ad)unless required by local law or customary in the relevant jurisdiction, the circumstances in which the Collateral shall be released should not be dealt with in individual security documents but, if so required, shall, except to the extent required by local law, be the same as those set out in the Credit Documents;
(ae)other than in each case of any German law share pledge agreement, each (a) security document which is a Common Security Document (as defined in the Intercreditor Agreement) must contain a clause which records that if there is a conflict between the Common Security Document or the Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Intercreditor Agreement will prevail; and (b) security document which is not a Common Security Document (as defined in the Intercreditor Agreement) must contain a clause which records that if there is a conflict between the security document or the Credit Agreement or the Intercreditor Agreement then (to the fullest extent permitted by law) the provisions of the Credit Agreement and Intercreditor Agreement will, in each case take priority over the provisions of the security document unless and to the extent it would prejudice the legality, creation, priority, perfection, validity or enforceability of such security document or the security created under or pursuant to the security document, save with respect to the release of the security interests where applicable law and market practice require certain additional steps in order to address local law claw back issues (e.g. comfort documents);
(af)each of the security documents will, to the extent possible under local law, include a provision that provides that (i) all rights, protections, limitations on liability, exculpations and indemnifications provided or otherwise afforded to the Administrative Agent and the Applicable Collateral Agent under the Credit Agreement or Intercreditor Agreement, including, without limitation Section 9 and Section 10.3 of the Credit Agreement shall apply in all respects to the Applicable Collateral Agent as chargee, security trustee or pledgee under the applicable security document, (ii) the applicable security document shall be subject to the provisions of Section 10.3 of the Credit Agreement, which provisions shall apply to the applicable security document mutatis mutandis as though fully set forth therein, with each reference to the Borrower or Company, as applicable, being read to include the applicable chargor or pledgor, (iii) the Applicable Collateral Agent may act and exercise rights under the applicable security document, but shall not be obligated to act or exercise rights under the applicable security documents (and shall not incur liability for failure to act or exercise rights) unless directed in writing by the Required Lenders; provided that the Applicable Collateral Agent shall not be required to take any action or exercise any right that, in its opinion or the opinion of its counsel, may lead it to expend its own funds or expose
the Applicable Collateral Agent to liability or that is contrary to any Credit Document or applicable laws (for the avoidance of doubt, the Applicable Collateral Agent may refrain from acting in accordance with any instructions of any Lender or group of Lenders until it has received any indemnification and/or security that it may in its discretion require (which may be greater in extent than that contained in the Credit Documents and which may include payment in advance) for any cost, loss or liability which it may incur in complying with those instructions);
(ag)subject to (or to the extent permitted by) the applicable law and in accordance with market practice, the terms of the security documents shall secure the Obligations as such Obligations (and/or the Credit Agreement or other Credit Documents) (or, where relevant, parallel debt derived therefrom) may be amended, amended and restated, restated, supplemented, replaced, renewed, restructured, extended, refunded, refinanced or otherwise modified from time to time (including without limitation, where such transactions result in any increases or decreases of the principal amount of the Obligations, any extensions of maturity, any changes in interest rates or other economic terms, or any changes in the Secured Parties, Lenders or Lenders’ agents) so as to minimize the need for any additional security documents, confirmations, reaffirmations, supplements, amendments or other actions with respect to such security documents in connection with the foregoing; and
(ah)each of the security documents will provide that all proceeds will be applied in accordance with the Intercreditor Agreements and Section 2.15 of the Credit Agreement.
7.Shares and/or quotas
(ai)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, the legal title of the shares and/or quotas subject to any security will remain with the relevant grantor of the security (unless transfer of title on granting such security is customary in the applicable jurisdiction and does not result in any risk of liability to the Applicable Collateral Agent (as advised by the advisors to the Applicable Collateral Agent or Lenders)).
(aj)Until an Applicable Event has occurred and is continuing, to the extent possible under local law, any grantor of share security will be permitted to retain and to exercise all voting rights and powers in relation to any shares and other related rights charged by it and receive, own and retain all assets and proceeds in relation thereto without restriction or condition, provided that (to the extent permitted by the applicable law) such grantor must not exercise any such voting rights and powers in any manner which:
(i)has the effect of changing the rights of such shares or of any related rights with respect to such shares, unless specifically permitted by the Credit Agreement; or
(ii)adversely affects the validity or enforceability of such share security or causes an Event of Default to occur, or is otherwise materially prejudicial to the interests of the Applicable Collateral Agent and/or the Secured Parties.
(ak)Where customary and applicable as a matter of law and following a request by the Applicable Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders), as soon as reasonably practicable (taking into account any stamping, endorsement in blank, assignment in blank or other transfer requirements) following the granting of any share security over certificated shares or quotas, the applicable share certificate (or other documents evidencing title to the relevant shares,
including any shareholder's register, as applicable) and a stock transfer form executed in blank (or applicable law equivalent) will be provided to the Applicable Collateral Agent.
(al)No security shall be required to be granted over any shares or ownership interests in any person that are not directly owned by its immediate holding company.
(am)If required under local law, security over shares and/or quotas will be notarised and registered subject to the general principles set out in these Agreed Security Principles. In particular, but not limited to, to the extent applicable, security over shares and/or quotas issued by a Spanish company will be registered in the relevant registry book of shareholders (libro registro de acciones nominativas) and/or the relevant registry book of quotaholders (libro registro de socios) or with the relevant depositary entity and on the titles to property over the shares/quotas; with respect to shares in Polish companies, the information on establishment of share security will be entered into the book of shares (księga udziałów) and into the list of shareholders (lista wspólników), which will be filled together with motions for registrations of registered pledges over shares in each Polish company within the relevant registry courts.
(an)Unless the restriction is required by law, the constitutional documents of the company whose shares have been charged will be amended to remove any restriction on the transfer, approval requirements or the registration of the transfer of the shares on enforcement of the security granted over them or to allow exercising voting rights by the Collateral Agent or to allow the Collateral Agent to convene a general meeting. To the extent applicable, the applicable grantor of the security will use its commercially reasonable efforts to obtain the registration of any needed amendment of the by-laws with the relevant mercantile registry as soon as practicable.
8.Bank accounts
(ao)Until an Applicable Event has occurred and is continuing or a Global Liquidity Event Period has occurred and is continuing, unless the Credit Agreement expressly provides for any specific account (by reference to its purpose) to be subject to specific restrictions on use, any Credit Party will be free to deal, operate and transact business in relation to any bank accounts over which it grants security (including opening and closing accounts) until the occurrence of an Applicable Event which is continuing or a Global Liquidity Event Period is continuing.
(ap)If required by local law to create or perfect the security, notice of the security will be served on the account bank in relation to applicable accounts within five (5) Business Days of the creation or intended creation of the security over such account. The applicable grantor of the security will enter into, and procure the account bank enter into, a Deposit Account Control Agreement in accordance with the requirements under the Credit Agreement (including Section 5.15). In respect of any jurisdiction (such as Italy) where periodic notification to the account bank is required to perfect the security, the grantor of the security shall deliver such notification in such form as required to perfect the security under local law in accordance with the timeframes in paragraph 6(d) above or such other timeframe as may be required by the Applicable Collateral Agent following an Applicable Event.
(aq)Any security over bank accounts will be subject to any security interests in favour of the account bank, which are created either by law or, subject to the below, in the standard terms and conditions of the account bank. Other than as required to satisfy the requirements of the Credit Parties in the Credit Agreement (including Section 5.15), no grantor of security will be required to change its banking arrangements or standard
terms and conditions in connection with the granting of bank account security (and for the avoidance of doubt, the grantor will in relation to Collection Accounts be required to procure the account bank waives, subordinated or otherwise limits the amounts secured by such lien in an amount agreed by the Administrative Agent by the dates by which it is required to deliver a DACA and in respect of bank accounts that are not Collection Accounts in Germany, the Netherlands, Belgium and any other Applicable Jurisdiction where the lien prevents the grant of a first ranking Lien to the Applicable Collateral Agent, be required to, on the basis of a best efforts obligation only, have the account bank waive such liens pursuant to its general terms and conditions).
(ar)[Reserved].
(as)If any bank account is required to be opened as a matter of local law in order to perfect any share security required to be granted in accordance with these Agreed Security Principles, (i) such bank account shall not be required to be opened prior to the date falling 90 days after such share security is granted and (ii) the Lenders authorise the Applicable Collateral Agent to enter into any documentation requested by the applicable account bank in connection with such security.
(at)If required under applicable local law, security over bank accounts will be registered subject to the general principles set out in these Agreed Security Principles.
9.Moveable Property
(au)A Foreign Credit Party shall grant security over its moveable property, subject to the general principles in these Agreed Security Principles.
(av)No security needs to be granted by a Credit Party over inventory located in Germany if such inventory is located at locations with, in each case, an aggregate total inventory of less than $600,000 (an "Excluded Site") provided that to the extent inventory of Credit Parties located at Excluded Sites exceeds $3,000,000, all inventory in excess of such threshold located at Excluded Sites shall be required to be granted in favour of the Applicable Collateral Agent.
(aw)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Credit Documents, the Foreign Credit Party providing the security is permitted to dispose of and use its moveable assets in accordance with the terms of the Credit Agreement.
(ax)If he granting of effective security over moveable assets gives rise to registration costs or similar taxes or costs, the secured amount under such security will be proportionate to the value of the underlying moveable asset (together with such buffer as may be reasonably agreed by the Administrative Agent with the Company to reflect the fluctuating nature of the asset class), and ‘mandates’ to grant security will be granted where customary.
10.Insurance Policies
(ay)Each Foreign Credit Party shall grant security over its insurance policies, subject to the general principles in these Agreed Security Principles and other than insurance proceeds which (i) payable to third parties, such as proceeds under life, health, group insurance or similar third parties liability insurance policies or (ii) benefit to employees and/or directors, if any.
(az)No security will be granted over any insurance policy which does not allow security to be granted or which excludes the assignability of the insurance receivables, other than where such grant of security or such assignment is subject only to the consent of the relevant insurer. The provisions of this paragraph shall not operate to jeopardise any floating charge nor any assignment or other security interest over any and all damages, compensation, proceeds or other income attributable to such insurance policies which such Foreign Credit Party may be entitled (or which such Foreign Credit Party may be awarded or otherwise derive therefrom).
(ba)If required by local law to perfect the security or customary in the relevant jurisdiction, notice of the security will be served on the insurer within five Business Days (or less if required or customary under local law) of the security being granted and such Foreign Credit Party shall use its commercially reasonable efforts to obtain a signed acknowledgement of that notice.
11.Intellectual property
(bb)A Foreign Credit Party shall grant security over its intellectual property, subject to the general principles in these Agreed Security Principles.
(bc)Until an Applicable Event has occurred and is continuing and to the extent permitted under the Credit Documents, such Foreign Credit Party shall be free to deal with, use, licence and otherwise commercialise those assets in the course of its business (including allowing its intellectual property to lapse if no longer material to its business) to the extent permitted under the Credit Agreement.
(bd)No security will be granted over intellectual property which cannot be secured under the terms of any relevant licensing agreement.
(be)If required under local law to create or perfect the relevant security, security over intellectual property shall be notarized and/or registered under the law of the jurisdiction of incorporation or formation of the applicable grantor, and no filings, registrations or other steps shall be required to be taken pursuant to the law of any other jurisdiction other than the United States or the United Kingdom, subject to the general principles set out in these Agreed Security Principles.
(bf)Security over intellectual property rights will be taken on an “as is, where is” basis and such Foreign Credit Party will not be required to procure any changes to, or corrections of filings on any registers (unless, subject to this Annex, such changes to, or corrections of, filings are required to validly create such Security).
12.Receivables
(bg)A Foreign Credit Party shall grant security over its receivables, subject to the general principles in these Agreed Security Principles.
(bh)In respect of security over receivables (other than intra-group receivables), notice of the security may (at the Collateral Agent's discretion) be served or required to be served on the relevant debtor (other than an intercompany debtor) immediately during a Global Liquidity Event Period or after an Event of Default, which is continuing provided that for any jurisdiction where notification to the debtor is required to perfect the security (including Italy), the notification shall be made in such form as required to perfect the security under local law in accordance with the timeframes in paragraph 6(d) above or such other timeframe as may be required by the Applicable Collateral Agent following an Applicable Event. Notice of security over intercompany receivables shall be served
on the relevant intercompany debtor within ten (10) Business Days of the creation of the security over such receivables.
(bi)Each Foreign Credit Party will use commercially reasonable efforts to amend, after the Closing Date, the respective receivable invoices to mention the Applicable Collateral Agent’s security interest in such receivables to the extent required under the laws of the local jurisdiction of the Foreign Credit Party to perfect the security interest.
(bj)[Reserved]
(bk)If required under local law, security over intercompany receivables will be registered and notified to the relevant intra-group debtor subject to the general principles set out in this Annex.
(bl)If a Foreign Credit Party grants security over its receivables it shall be free to deal with, amend, waive or terminate those receivables in the course of its business and in accordance with the terms of the Credit Agreement until the occurrence of an Applicable Event (other than any amendments or waivers that would materially adversely prejudice the rights of the Secured Parties).
(bm)No security will be granted over any trade receivables which cannot be secured under the terms of the relevant contract or if the terms of the relevant contract exclude the assignability of the trade receivables (unless such restrictions are set aside by overriding principles of applicable law). The provisions of this paragraph shall not operate to jeopardise any floating charge, any other security interest in respect of such receivables which is not restricted, any trust arrangement in respect of such receivables, or any assignment or other security interest over any and all damages, compensation, proceeds, remuneration, profit, rent or other income attributable to such trade receivables which the Foreign Credit Party may be entitled (or which such Foreign Credit Party may be awarded or otherwise derive therefrom).
(bn)If required under local law security over trade receivables will be registered subject to the general principles set out in this Annex.
(bo)Any list of receivables required to be delivered under any security document will not include details of the underlying contracts (but may include non-sensitive generic information to the extent that would allow for the creation of security) unless required under local law or required to enforce the security.
(bp)With respect to a French Credit Party, such French Credit Party will grant security over its commercial receivables by way of assignment of any existing or future receivable (créance existante ou future) due or to be due by any existing or future debtor to such French Credit Party, in each case as originated by such French Credit Party, pursuant to articles L. 313-23 et seq. of the French Monetary and Financial Code (Code monétaire et financier).
13.Additional Principles
These Agreed Security Principles embody the recognition by all parties that there may be certain legal and practical difficulties in obtaining effective or commercially reasonable guarantees and/or security from Foreign Credit Parties in each jurisdiction in which it has been agreed that guarantees and security will be granted by those Foreign Credit Parties. In particular:
(bq)general legal and statutory limitations, regulatory restrictions (including foreign exchange controls), financial assistance, anti-trust and other competition authority restrictions, corporate object, corporate benefit, fraudulent preference, legal and equitable subordination, "transfer pricing", "thin capitalisation", "earnings stripping", "exchange control restrictions", "capital maintenance" rules and "liquidity impairment" rules, tax restrictions, retention of title claims, employee consultation or approval requirements and similar principles may limit the ability of a member of the Group to provide a guarantee or security or may require that the guarantee or security be limited as to amount or otherwise and, if so, the guarantee or security will be limited accordingly, provided that, to the extent requested by the Applicable Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders) before signing any applicable security or accession document, the relevant member of the group consisting of the Company and its Subsidiaries (the “Group”) shall use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(br)a key factor in determining whether or not a guarantee or security will be taken (and in respect of the security, the extent of its perfection and/or registration) is the applicable time and cost (including adverse effects on taxes, interest deductibility, stamp duty, registration taxes, notarial costs guarantee fees payable to any person that is not a member of the Group and all applicable legal fees) which will not be disproportionate to the benefit accruing to the Lenders of obtaining such guarantee or security, as determined by the Company and the Required Lenders);
(bs)unless otherwise required by the Credit Agreement, members of the Group will not be required to give guarantees or enter into security documents if they are not directly or indirectly wholly owned by the Company or if it is not within the legal capacity of the relevant members of the Group or if it would conflict with the fiduciary or statutory duties of their directors or contravene any applicable legal, regulatory or contractual prohibition or restriction or have the potential to result in a material risk of personal or criminal liability for any director or officer of or for any member of the Group, provided that, to the extent requested by the Applicable Collateral Agent or the Administrative Agent (acting at the direction of Required Lenders) before signing any applicable security document or accession document, the relevant member of the Group shall, in relation to a contractual prohibition or restriction only, use commercially reasonable efforts (but without incurring material cost and without adverse impact on relationships with third parties) to overcome any such obstacle or otherwise such guarantee or security document shall be subject to such limit;
(bt)having regard to the principle in paragraph (b) above, the Company and the Required Lenders shall discuss in good faith (having regard to customary practice in applicable jurisdictions) with a view to determining whether certain security can be provided by the relevant Foreign Credit Party granting a promise to pledge in favour of the Lenders coupled with an irrevocable power of attorney to the Applicable Collateral Agent as opposed to a definitive legal mortgage or pledge over the relevant asset;
(bu)guarantees and security will be limited so that the aggregate of notarial costs and all registration and like taxes and duties relating to the provision of security will not exceed an amount to be agreed between the Company and the Required Lenders;
(bv)where a class of assets to be secured includes material and immaterial assets, if the cost of granting security over the immaterial assets is disproportionate to the benefit of such security to the Lenders, as determined by the Company and the Required Lenders security will be granted over the material assets only;
(bw)it is expressly acknowledged that it may be either impossible or impractical to create security over certain categories of assets, as determined by the Company and the Required Lenders, in which event security will not be taken over such assets;
(bx)in each case to the extent the applicable restriction, condition or third party right did not arise in contemplation of the relevant guarantee or grant of security, any asset subject to a legal requirement, contract, lease, licence, instrument, regulatory constraint (including any agreement with any government or regulatory body) or other third party arrangement, which may prevent or condition the asset from being charged, secured or being subject to the applicable security document (including requiring a consent of any third party, supervisory board or works council (or equivalent)) and any asset which, if subject to the applicable security document, would give a third party the right to terminate or otherwise amend any rights, benefits and/or obligations with respect to any member of the Group in respect of the asset or require the relevant chargor to take any action materially adverse to the interests of the Group or any member thereof, in each case will be excluded from a guarantee or security document, provided that commercially reasonable efforts to obtain consent to securing any asset (where otherwise prohibited) shall be used by the Group if the Administrative Agent (acting at the direction of Required Lenders) specifies prior to the date of the security or accession document that the asset is material and the Company is satisfied that such endeavours will not involve placing relationships with third parties in jeopardy (it being acknowledged that any failure to obtain consent shall mean that such asset(s) shall not be included in the Borrowing Base);
(by)the giving of a guarantee, the granting of security and the registration and/or the perfection of the security granted will not be required if it would have a material adverse effect on the ability of the relevant member of the Group to conduct its operations and business in the ordinary course as otherwise permitted by the Credit Documents (including dealing with the secured assets and all contractual counterparties or amending, waiving or terminating (or allowing to lapse) any rights, benefits or obligations, in each case prior to an Applicable Event which is continuing), and any requirement under these Agreed Security Principles to seek consent of any person or take or not take any other action shall be subject to this paragraph (i);
(bz)any security document will only be required to be notarised if required by law in order for the relevant security to become effective (including against third parties), enforceable or admissible in evidence (including without limitation evidence before third parties);
(ca)to the extent possible and unless required by applicable law in order for any assignee or transferee to benefit from the guarantees or security, there should be no action required to be taken in relation to the guarantees or security when any secured party assigns or transfers any of its participation to a new secured party (and, unless agreed to the contrary in the Credit Documents, no Foreign Credit Party shall bear or otherwise be liable for any taxes, any notarial, registration or perfection fees or any other costs, fees or expenses that result from any assignment or transfer by a Lender except if an Applicable Event has occurred and is continuing);
(cb)other than in respect of assets included in the Borrowing Base, no title investigations or other diligence on assets will be required and no title insurance will be required;
(cc)security will not be required over any cash constituting regulatory capital or customer cash (and such assets or cash shall be excluded from any relevant security document);
(cd)to the extent legally effective, all security will be given in favour of the Applicable Collateral Agent and not the Secured Parties individually (with the Applicable Collateral Agent to hold one set of security documents for all the Secured Parties unless otherwise required by local law); "parallel debt" provisions will be used where necessary and recognised; for the avoidance of doubt, in relation to accessory security under German law (akzessorische Sicherheiten), such security will be given in favour of the Applicable Collateral Agent and the Secured Parties; it is acknowledged that certain security will be granted for those Secured Parties that satisfy any local law requirements necessary to benefit from such security;
(ce)each security document shall be deemed not to restrict or condition any transaction permitted under the Credit Documents or not otherwise prohibited under the Credit Documents and the security granted under each security document entered into after the Closing Date shall be deemed to be subject to these Agreed Security Principles, before and after the execution of the relevant security document and creation of the relevant security;
(cf)each security document must be provided on terms which are not inconsistent with the turnover or sharing provisions in the Credit Agreement.
(cg)no guarantee or security shall guarantee or secure any "Excluded Swap Obligations" defined in accordance with the LSTA Market Advisory Update dated February 15, 2013 entitled "Swap Regulations' Implications for Credit Documentation", and any update thereto by the LSTA;
(ch)no translation of any document relating to any security or any asset subject to any security will be required to be prepared or provided to the Secured Parties, unless (i) any document which is to be signed by the Applicable Collateral Agent or any notice to be delivered to the Applicable Collateral Agent or (ii) required for such documents to become effective, registered or admissible in evidence or (iii) an Applicable Event is continuing;
(ci)local security documents may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, and delivery of an executed counterpart to any security document by facsimile transmission or other electronic transmission (such as .pdf) shall be effective as delivery of a manually signed counterpart, in each case to the extent such execution is effective under local law; and
(cj)[Reserved].
14.Amendment
In any event of any material conflict or material inconsistency between any term of these Agreed Security Principles and any term of a Security Document or a guarantee, the Secured Parties authorize, instruct and direct the Applicable Collateral Agent to, and the Applicable Collateral Agent (or the Secured Parties, if required under the relevant jurisdiction) shall promptly (at the option and upon request of the Company prior to the occurrence of an Event of Default which is continuing) (i) enter into (and notarise if required under the relevant jurisdiction) such amendments to such Security Document or guarantee or (ii) release and terminate such Collateral and enter into a replacement Security Document or guarantee on such amended terms, in each case as shall be necessary or desirable to cure such conflict or inconsistency, provided that (1) any such action (including any actions to be taken by the Lenders) will be at the sole cost of the Company; (2) the relevant Credit Party shall deliver all corporate authorities and legal opinions as may be required by the Applicable Collateral Agent; and
(3) no such action will be required to be taken in the event such amendment or replacement Security Document or guarantee would result in any hardening period or clawback period to be reset.
15.Execution of applicable Intercreditor Agreements
Any Foreign Credit Party, existing on the Closing Date or hereinafter incorporated, shall sign or acknowledge, as applicable, any Intercreditor Agreement.
16.Override
Notwithstanding anything to the contrary in these Agreed Security Principles:
(ck)it is agreed that, to the extent that an asset cannot be the subject of a Lien as a result of anything in these Agreed Security Principles, such asset shall not form part of the Borrowing Base;
(cl)each English Credit Party shall grant a Lien over all of its assets by way of a qualifying floating charge (or equivalent); and
(cm)in respect of any Common Lien (as defined in the Intercreditor Agreement), to the extent there is a conflict between these Agreed Security Principles and any Agreed Security Principles applicable to any other Debt Agreement (as defined in the Intercreditor Agreement), the Agreed Security Principles that are most favourable to the Secured Parties (as defined in the Intercreditor Agreement) shall apply.
